Plaintiffs Leslie M. Westreich and Shira S. Westreich move, pursuant to CPLR 3212 (a), for summary judgment on their claims to recover a $90,000 deposit that they paid toward the purchase of the shares appurtenant to a co-operative apartment and certain personalty from defendant George Bosler. Defendant Jan Levien was Bosler's attorney and the escrow agent holding the deposit.

The relevant facts, as set forth below, are undisputed. On or about October 5, 2008, plaintiffs and Bosler entered into a sales contract, which provided, among other things that:

The Seller shall have no right to adjourn the scheduled closing date of January 15, 2009. Purchasers shall have the right to reasonably adjourn the closing date of January 15, 2009, provided that Purchasers give Seller reasonable notice of their intention to do so.

Purchasers hereby give notice of their intention to adjourn the scheduled closing date of January 15, 2009. The Purchasers will provide Seller with further notice of the adjourned closing date.

Assuming that we have no right to adjourn the closing date beyond February 16, 2009 (but without waiving any such right), if we are unable to close on February 16th due to no fault of others, then you may designate a future closing date provided you act in a reasonable fashion and grant a reasonable adjournment for that date.

As you have decided not to give me the courtesy of a return phone call, I have scheduled the closing for February 17, 2009 at 12 noon in the offices of the managing agent.

Be advised that you are hereby notified that, in the event you do not close, I shall release the escrow funds to my client.

On February 13, 2009, the attorneys for the cooperative sent plaintiffs a closing statement by e-mail, identifying which party was responsible for certain fees and deposits, and stating that the closing would be held at their office.

Plaintiffs responded neither to the February 11th letter, nor to the February 13th e-mail, raised no objection to Levien's threatened release of the escrow funds, failed to notify defendants that they would not appear, and, neither appeared nor were heard from on February 17. Accordingly, Levien wrote to Mr. Sakalis that, "in light of your default, the contract is rescinded and the escrow deposit will be released to Mr. Bosler." Levien Affirm., Exh. F. Plaintiffs did not respond to that letter.

Plaintiffs' claim to their down payment rests on their arguments that: (1) defendants had no right to set the adjourned date of the closing, because they had no right to adjourn the contract date for the closing; and (2) Levien's February 11, 2009 letter did not adequately apprise plaintiffs that the February 17th date was of the essence. They explain their absence on February 17 as due to the illness of Ms. Westreich's mother in Florida.

Plaintiffs waived their first argument, by agreeing to the February 16, 2009 date, and not objecting to the extension to the first business day thereafter. As to their second argument, a "seller [can] convert a non-time-of-the-essence contract into one making time of the essence by giving the buyer `clear unequivocal notice' and a reasonable time to perform." ADC Orange, Inc. v Coyote Acres, Inc., 7 NY3d 484, 490 (2006), quoting Levine v Sarbello, 67 NY2d 780 (1986), affg 112 AD2d 197, 200 (2d Dept 1985). So long as the notice warns that a failure to close on the specified date will constitute a default, it "need not state specifically that time is of the essence." Karamantzanis v Cohen, 181 AD2d 618, 618 (1st Dept 1992); see also Zev v Merman, 134 AD2d 555, 557 (2d Dept 1987), affd 73 NY2d 781 (1988). Levien's February 11, 2009 letter expressly stated the consequences that would follow from a failure on the part of plaintiffs to close on February 17, to wit, that she would release plaintiffs' deposit to her clients. Moreover, the failure to communicate on February 17, 2011 is an unexplained default. Consequently, plaintiffs are not entitled to summary judgment. Indeed, upon searching the record (CPLR 3212[b]), it is apparent that defendants are entitled to judgment in their favor.

Accordingly, it is hereby

ORDERED that plaintiffs' motion for summary judgment is denied; and it is further

ORDERED that summary judgment is granted to defendants and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: July, 2011

ENTER:

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J.S.C.