in order to be entitled to keep the Security Deposit. The Colacinos assert that any right the Sellers
had to reject the Notice of Cancellation was waived by Andrews' Letter in which she wrote,
"Purchaser having elected to cancel the Contract by a notice dated October 15, 2009, I hereby
request that you release to me the [Security Deposit], as liquidated damages based on the
Purchasers' willful breach of the Contract." The Colacinos assert that such waiver was made
irreversible when the Sellers sold their Apartment to another party. The Colacinos further assert
that the liquidated damages clause is an illegal, unenforceable penalty and has no relation to
probable actual damages.
The Sellers oppose the motion, arguing that while the Notice of Cancellation did
terminate the Contract, and the cancellation occurred under conditions which entitle the Sellers to
the Security Deposit.
The Sellers argue in part that the Colacinos were not entitled to cancel the
Agreement under Paragraph 6.3 of the Contract as the Board provided timely unconditional
approval of the sale of the Apartment. They characterize the Board's requirement that the
Colacinos provide proof of the sale of the Apartment as a contingency or accommodation, rather
than a condition. The Sellers also argue that the requirement was made in accommodation of the
Colacinos' schedule and was in the nature of a reminder that proof of the sale of the Beach Street
Residence had to be supplied to the Board, as the Colacinos had represented to the Board that the
sale of the Beach Street Residence was essentially a fait accompli and that the proceeds
from the sale would be used to finance the purchase of the Apartment.[FN4]
[*7]
The Sellers also assert that the Board's approval