Question of Fact Regarding Whether Time Was of the Essence Precludes Summary Judgment

On October 2, 2017, Justice Ash of the Kings County Commercial Division issued a decision in Scott Randolph LLC v. Gholis of Brooklyn Corp., 2017 NY Slip Op. 32086(U), holding that there was a question of fact regarding whether time was of the essence in a real estate contract, explaining:

Where time is not made of the essence in the original contract for the sale of real property, a party may subsequently give notice to that effect. The notice setting a new date for the closing must (l) give clear, distinct, and unequivocal notice that time is of the essence, (2) give the other party a reasonable time in which to act, and (3) inform the other party that if he does not perform by the designated date, he will be considered in default. Here, Plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law on the issue of liability for breach of contract insofar as Plaintiff did not establish that the November and December notices sent by Gholis were insufficient to set a time is of the essence closing date of December 11, 2014. Plaintiffs arguments for summary judgment conveniently ignore Gholis's November 6'h notice. Thus, Plaintiffs reliance on only the December notices is insufficient to merit Plaintiff summary judgment on its breach of contract claim.

(Internal quotations and citations omitted) (emphasis added).