Colacino's actions induced the Board to impose a condition on its approval of the Colacinos'
Application which would not be fulfilled prior to the Adjourned Closing Date due to the actions
of the Colacinos. The Colacinos represented to the Board that they would purchase the
Apartment with funds from the sale of the Beach Street Residence; however, it appears from
E-mail #1 that the Colacinos, rather than the prospective purchasers of the Beach Street
Residence, chose to postpone the sale of the Beach Street Residence from September to October.
In E-mail #1, Mr. Colacino explains to Muss that the closing on the Beach Street Residence was
postponed because he was "hoping not to have to move twice" and that after the closing on the
Beach Street Residence, he would be putting his furniture into storage and moving his family
"into a furnished apartment or hotel;" however, these statements could be viewed as inconsistent
with an intention to close on the Apartment. Furthermore, Mr. Colacino's statement in his
affidavit that he realized during or prior to October that the Board was unlikely to approve the
sale of the Apartment until the closing on the Beach Street Residence, together with the multiple
postponements of that transaction and Mr. Colacino's representation to the Board that he would
use funds from the sale of the Beach Street Residence to finance the purchase of the Apartment,
raise issues of fact as to whether the Colacinos frustrated the Board's approval process.
The Colacinos' argument that they were entitled to cancel the Agreement and to the
return [*10]of the Security Deposit by virtue of Paragraph 20 of
the Sellers' Rider is contrary to the plain meaning of the provision, and is rejected. Paragraph 20