Closing, within the meaning of the Contract, is September 1, 2009.
Footnote 2: It is unclear to what extent these
statements by Solomon are based on her personal knowledge of written statements by Mr.
Colacino or second-hand knowledge based on communications from Muss regarding the
Colacinos.
Footnote 3: Giddins appears to have
mistakenly written that the amount of the Security Deposit was $304,000.00, as opposed to
$380,000.00.
Footnote 4: The Sellers appear to mistakenly
state in their opposing papers that, at the time of the Colacinos' interview with the Board, the
Board was under the impression that the sale of the Beach Street Residence would occur on
October 15, 2009. As such, they actually framed their arguments as to the unconditional nature of
the Board's requirement in these terms in their opposing papers, but the more accurate expression
of their argument, which is reflected in the text of this decision, is contained in the sur-reply.
Footnote 5: Plaintiffs also raise other
arguments in their reply papers which are unavailing and, which in any event, were not raised in
their moving papers. These arguments include that the "consent" that had to have been obtained
from the Board was actually a written document and that it had to have been received by the
parties by the Adjourned Closing Date
Footnote 6:This interpretation is consistent
with Ebert's testimony that Paragraph 20 of the Sellers' Rider was inserted by him, the lawyer for
the Sellers, to protect the Sellers.
Footnote 7: Contrary to the Colacinos'
position, D'Abreau v. Smith, 240 AD2d 616 (2nd Dep't 1997), which involves a claim for
breach of a contract for the sale of real property, is consistent with the above-referenced cases.