Tesmer Builders, Inc. v. Cimato

Order and judgment unanimously reversed on the law with costs, cross motion denied, motion granted and judgment ordered in accordance with the following Memorandum: Supreme Court erred in granting plaintiff’s cross motion for summary judgment, finding that plaintiff is entitled to recover its down payment of $50,000. The parties entered into a contract for the sale of real property providing that "[a]ny closing date is predicated upon Purchaser being able to obtain a Building Permit on the scheduled date of closing.” Defendants (sellers) set a closing date of February 9, 1994, and declared…