1776 Associates Corp. v. Broadway West 57th Street Associates

Kassal and Rubin, JJ.,

dissent in a memorandum by Rubin, J., as follows: This appeal raises the question of whether a seller who was unable to close on a real estate transaction due to its failure to obtain a certificate of occupancy may nevertheless retain, as liquidated damages, a portion of the down payment deposited by the buyer on the ground that the buyer failed to deliver a letter of credit which, under the terms of the contract of sale, comprises the remainder of the down payment. I conclude that, under the circumstances of this case, the liquidated damages clause is unenforceable as a…