On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-8754-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Grall.
In this action for breach of a $14 million commercial real estate contract, Fort Lee Investors, LLC ("FLI") alleged that as an assignee of the purchaser it was entitled to the $700,000 deposit on the contract from the property owner, defendant Whitehall Towers, LLC ("Whitehall"). Pursuant to the contract, the deposit was in the possession of defendant Greenberg Traurig, LLP, Whitehall's attorneys. Whitehall obtained summary judgment entitling it to the deposit, and FLI appealed.
After carefully considering the record, briefs, and oral argument, we affirm substantially for the reasons expressed by Judge Harris in his thorough opinion of February 23, 2007. Nonetheless, we add the following comment.
Even if we accepted FLI's argument that the "assignment" it received was valid, a proposition properly rejected by Judge Harris, FLI's action would still fail because it, not Whitehall, breached the contract. Under paragraph 13(d) of the contract, the purchaser could terminate the contract if the seller had not obtained all the necessary permits and approvals for development of the project by a particular time. However, the purchaser was obliged to give written notice to the seller of its decision to terminate the contract within a specified ten-day period.
Otherwise, the permits and approvals condition was expressly waived.
FLI notified Whitehall in June 2006 that it was terminating the contract based on Whitehall's failure to obtain the necessary permits and approvals. In July 2006, FLI demanded the deposit, and on August 11, 2006, FLI filed this breach of contract action. The notice, the demand, and the filing of this action were all premature since under the contract Whitehall had until September 5, 2006, to obtain the permits and approvals.
Furthermore, under the contract, the purchaser was required to give written notice of its desire to terminate within ten days of September 5, 2006. FLI provided no such notice.
Judge Harris found that FLI had waived its right to claim that Whitehall had breached the contract by failing to obtain the necessary permits and approvals because of FLI's failure to provide the notice of termination required by the contract.
That determination is fully supported by the evidence. R. 2:11- 3(e)(1)(A). Since FLI did not conform its conduct to the requirements of the contract, it is not entitled to the deposit.