A trial of the above-captioned case was held before this Court, on January 23, 2017 and January 24, 2017. Since this was a bench trial, the Court was both the finder of facts and the determiner of questions of law. The Court considered the testimony of the witnesses, gave weight to that testimony, and generally determined the reliability of the witnesses' testimony (See Horsford v Bacott, 32 AD3d 310, 312 [1st Dept. 2006]). The Court also considered the interest or lack of interest in the case and the bias or prejudice of the witnesses (See People v Ferguson, 178 AD2d 149 [1st Dept. 991). �Having reviewed the parties' submissions and having reflected upon the evidence submitted at trial, the Court renders the following findings of fact and conclusions of law.

On July 19, 2005, Joaquin A. Espinal entered into a contract with defendant Andres Infante to purchase the latter's liquor store, in Corona, in the County of Queens. The purchase price for the business was $50,000, plus the value of the alcoholic beverage inventory, calculated on the basis of appraisals, which the parties agreed constituted the fair market value of the inventory. The purchase price was payable by a $10,000 check, representing the down payment, $40,000, by certified check, upon the execution and delivery of a bill of sale, and upon closing, a series of sixty (60) promissory notes for the [*2]existing liquor inventory at a rate of 8 percent. Upon execution of the contract, the plaintiff paid a down payment in the amount of $10,000 to the defendant. Paragraph nine of the rider provided, in pertinent part, as follows:

The obligations of the Transferee hereunder are conditioned upon the New York State Liquor Authority Approval of the Transferee for a Retail Liquor Store license. It is specifically agreed that the Transferee shall within ten (10) days after both parties hereto have executed this Agreement, deliver to the proper office of the said New York State liquor Authority, an application form for said license, completely, accurately and correctly completed, together with any required fees. Transferee agrees to pursue said application with diligence and cooperate in good faith with the New York State Liquor Authority to the end of obtaining said license. In the event that the Transferee is unable to obtain said license after making prompt, diligent and good — faith efforts to do so and as provided for herein, then and in that event, either party may cancel this Contract. In the event of the cancellation of thisContract in accordance with the terms of this paragraph, neither party shall have any further rights against, or obligations or liabilities to, the other by reason of this Contract except that the down payment some hereunder shall be promptly refunded to the Transferee. [Emphasis added.]

Transferee understands, covenants and agrees that any event it shall default in its obligations to be performed and/or observed as provided for in this Contract, and in recognition of the substantial detriment, damage and expense which Transferor will suffer and the difficulty in computing such detriment, damage, and expense, then and in such event, Transferor shall have the right to retain all sums deposited hereunder as and for liquidated damages, and Transferee renounces, waves and relinquishes any claim or right of whatever kind or nature, in law or equity, that it might have to a return of said some or any portion thereof, Transferee acknowledging that but for the provisions hereof, transferor would not enter into the within Contract. Transferee further agrees that any event it should assert any claim for the return of the aforesaid sum deposited hereunder, or interpose any answer, defense, or make any motion in opposition to Transferor's claim for such relief, and such claim is unsuccessful, Transferee shall be liable to Transferor for all costs and expenses incurred by Transferor, including reasonable attorneys' fees, in defense of said claim. In the event that the Transferor is unable to close in accordance with the terms and provisions of this Contract, then and in such event, the Escrow we shall promptly refund the down payment hereunder to the Transferee, and thereupon, neither party shall have any further rights against, or obligations or liabilities to the other by reason of this Contract. [Emphasis added.]

Both parties to this litigation endorsed this contract and accompanying rider, on [*3]July 19, 2005. The plaintiff worked in the subject liquor store both prior to and after entering into the purchase agreement. On October 20, 2007, the plaintiff obtained a bank check, in the amount of $4,373, made payable to the New York State Liquor Authority. On December 4, 2007, the parties signed an agreement, dated November 27, 2007, indicating that the defendant received from the plaintiff the sum of $100,000 in connection with the purchase of the subject liquor store. The purchase of the liquor store never closed. Instead, in 2007, the plaintiff worked full time in the liquor store running it. The defendant went to the Dominican Republic to reside full-time. On or about September 2008, the defendant claimed that the plaintiff was improperly managing store, and it was "falling apart." He stated that he wished to retake the business. The parties agreed that they would re-inventory the store and an adjustment would be made between the difference between the original inventory and the subsequent inventory. The plaintiff claims that the parties further agreed that the defendant would repay the plaintiff the sum of $120,000, plus adjustments for the lottery inventory and the bank account. A second inventory was completed, on or about October 5, 2008. The parties disagreed with respect to the valuation of the inventory calculations. The plaintiff failed to call the Ace Inventory Company as a witness. Hence, there was no firsthand testimony as the basis of the inventory calculations for the Court to evaluate.

When questioned, the plaintiff indicated, that on October 20, 2007, he filed a license application with the New York State Liquor Authority and brought a check with him for the payment of the fee. He then waited eleven (11) months. He never received a liquor license. The plaintiff testified that the check was never cashed. The plaintiff never kept a copy of the application that he ostensibly filed. The plaintiff claimed that the application said that the license would be issued within six to eight weeks. However, he continued to wait. He never called the New York State Liquor Authority to inquire. He never went down to the New York State Liquor Authority to check the status of his application. His testimony does not indicate any reason for his lack of action. He testified that the defendant called him from the Dominican Republic several times, asking about the status of the liquor license, and he told him that he had not heard anything from the New York State Liquor Authority.

Plaintiff testified that during the eleven-month period during which he was in control of the store, inventory was $241,000 and sales were $574,000. He claimed that he reinvested the profit from those sales into additional inventory for the store. When the plaintiff turned the store over to the defendant, in November 2007, the inventory was $215,000, except for miniatures, which were located in the back room. Plaintiff claimed that miniatures accounted for $135,000 or 65% of the total inventory. Plaintiff had no documentation to demonstrate that there was 65% of the alleged inventory in the back room. The Court notes that if the plaintiff had reinvested the profits from $574,000 in sales, using a profit margin of 20% to 25%, the inventory on hand should have exceeded $500,000, which it did not. Plaintiff also claimed that the profit from the sale of lottery [*4]tickets was additional revenue which he did not include in the sales ledger. He claimed that the amount of lottery tickets sold per week averaged between $5,000 and $6,000, which generated a 5% profit from the sales, equal to $11,000 over 11 months.

Plaintiff claims that he is entitled to the return of the escrow funds, since a closing of the subject business never occurred. He also claims that the defendant was unjustly enriched by the increased inventory, and the plaintiff's down-payment. In support of these polemics, he cites cases which are applicable to real-property closings. However, even assuming that these cases were controlling, which they are not, the plaintiff submits no evidence that a time-of-the-essence closing was ever demanded, or that time was made of the essence. Moreover, and most saliently, he fails to demonstrate that he complied with all conditions precedent to performance on the part of the seller.

Contracts are to be construed as the parties intended. When the contract is in writing, the best evidence of what the parties intended is what they said in that writing (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms (see Arthur Cab Leasing Corp. v Sice Mois Hacking Corp., 137 AD3d 828, 830 [2d Dept. 2016]).

The elements of a cause of action for breach of contract are: 1) formation of a contract between the parties, 2) performance by plaintiff, 3) defendant's failure to perform and 4) resulting damages (see Kausal v Educational Prods. Info. Exch. Inst., 105 AD3d 909, 910 [2d Dept. 2013]).

Paragraph 9 of the Rider to the Contract of Sale imposed a condition upon the plaintiff to apply for a liquor license to the New York State Liquor Authority, within ten days after the agreement was signed. The agreement was signed on July 19, 2005, meaning that the plaintiff had until July 29, 2005, to make said application timely. It is conceded that this did not occur. Instead, there was some evidence, that on October 20, 2007, over two years after the deadline, the plaintiff obtained a bank check in the amount of $4,373 made payable to the New York State Liquor Authority. Plaintiff claimed to have made application on that date, yet, he had no copies of the submitted application as proof. The check was never cashed, nor did the plaintiff ever inquire to the bank as to what happened to the check. Plaintiff testified that he was aware that he should have received a temporary license from the New York State Liquor Authority in 6 to 8 weeks, but he did not receive one or inquire. After that date, the testimony is clear that the plaintiff did nothing whatsoever to satisfy this condition of the contract. In short, the plaintiff failed to pursue said application with timeliness or diligence, as required under the contract. Instead, he continued to operate the store under the defendant's liquor [*5]license, paying himself a cash salary of $400 per week for two and a half years, and retaining profits and lottery proceeds.

Paragraph 9 of the Rider further states that, if the plaintiff was not able to obtain the license after making a prompt, diligent, and good-faith effort, either party could cancel the contract, and receive the return of his down-payment. The Court finds that, based upon the plaintiff's own testimony, he failed to make a prompt, diligent, and good-faith effort to apply for a liquor license. Hence, he cannot recover the return of his down-payment under the unequivocal terms of the parties' agreement.

Paragraph 10 of the Rider states that in the event that the plaintiff defaulted in his obligations under the contract, the defendant had to right to retain "all sums deposited hereunder as and for liquidated damages." Plaintiff testified that he was aware of the terms of the contract, specifically, paragraphs 9 and 10 of the Rider to the contract of sale. Pursuant to the clear terms of Paragraph 10, the defendant is entitled to retain all monies deposited by the plaintiff as liquidated damages. The plaintiff never demonstrated that the retention of escrow monies was grossly disproportionate to the amount of actual damages sustained by the defendant, so as to amount to an unenforceable penalty (see Bdo Seidman v. Hirshberg, 93 NY2d 382 [1999]).

A party asserting a claim for unjust enrichment must show that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered (Wallace v BSD-M Realty, LLC, 142 AD3d 701, 704 [2d Dept. 2016]). Plaintiff may recover based on quantum meruit, if the contract for its services is unenforceable (see Ellis v Abbey & Ellis, 294 AD2d 168, 170 [1st Dept. 2002]).

Here, the evidence at trial demonstrated that the plaintiff, while running the subject liquor business, receiving a salary of $400 per week, also received profits from the sale of $574,000 in liquor in excess of 20% to 25% of such sales (approximately $120,000), along with 5% of Lotto sales of approximately $11,0000. The plaintiff did not proffer any credible proof that these profits were reinvested in the business. He did not record the sales of lottery tickets in the sales ledger. Hence, the Court finds that the plaintiff received a benefit equal to or greater than what he paid towards the purchase price of the business by working for salary plus retained profits. Thus, equity is not offended by the plaintiff's loss of the payments made to purchase the business. Moreover, the plaintiff earned these amounts using the defendant's liquor license without expending $5,000 to get his own liquor license.

Moreover, the Court declines to make any award to the plaintiff for the increase in inventory due to the plaintiff's efforts. The plaintiff failed to clearly demonstrate entitlement to same. The plaintiff is not entitled to an award for the value of his services and during the time of the pendency of the sale of the business, since he received a salary, plus the amount of lottery profits and the profits from the sale of $574,000 in liquor. The [*6]Court does not credit the plaintiff's testimony that he reinvested these profits. Likewise, since the plaintiff did not prevail herein, he is not entitled to attorneys' fees under the contract.

CPLR 3011 provides that an answer requires a counterclaim. The failure to serve a reply to a counterclaim constitutes a default. However, pursuant to CPLR 3215(c), a default must be taken within one year after the default, or the cause of action shall be deemed abandoned, and the cause dismissed.

Here, the plaintiff inexplicably failed to respond to the defendant's counterclaim, and the defendant likewise inexplicably failed to take a default within one year.

Accordingly, the counterclaim is dismissed.

Neither side presented evidence regarding attorneys' fees. Hence, the Court declines to make an award for same.

By reason of the foregoing, the Court renders its decision in favor of the defendant, dismissing all of the plaintiff's claims in this action.

As to the counterclaim, the Court dismisses the counterclaim as abandoned.

Accordingly, based upon the foregoing, it is,

ORDERED, that the plaintiff's case is dismissed; and it is further

ORDERED, that the defendants shall receive no recovery on their counterclaim, which is likewise dismissed; and it is further

ORDERED, that no attorneys' fees shall be awarded.