[Colacinos'] willful breach of the terms of, and lack of good faith in timely complying with, the
terms and conditions of the [Agreement]."
By letter dated October 20, 2009 ("Giddins' Letter"), Giddins informed Ebert that the
Security Deposit had not been released to the Colacinos despite due demand for it, and that if it
was not returned immediately, the Colacinos would commence an action for the return of the
Security Deposit.[FN3]
By letter dated October 22, 2009 ("Ebert's Letter"), Ebert informed Giddins that the
Notice of Cancellation was untimely and improper. However, Ebert does not explain the grounds
for his assertion that the Notice of Cancellation was untimely and improper either in Ebert's
Letter or in Ebert's subsequent deposition in respect to the present action. In Ebert's Letter, Ebert
informs Giddins that Andrews had made demand for the amount of the Security Deposit.
At some time after the Notice of Cancellation was served, the Colacinos requested
that the Sellers renegotiate terms for a sale of the Apartment at a lower price, and they conveyed
that such renegotiation would enable the parties to avoid litigation as to the Security Deposit.
Around this time, the Colacinos retained Bergman as litigation counsel. It appears that Bergman
and Giddins engaged in certain discussions with Ebert concerning a contract renegotiation, but
no agreement was reached.
On or about December 17, 2009, the Colacinos commenced this action against the
Sellers and Ebert seeking the return of the Security Deposit or a judgment that the Sellers remain
obligated to perform in accordance with the Agreement. The Sellers filed an Answer which
included various counterclaims against the Colacinos.
At sometime after the Notice of Cancellation was served, Andrews requested that