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Lee v. Tenafly Associates

July 28, 2010

JUNG SOOK LEE, PLAINTIFF-APPELLANT,
v.
TENAFLY ASSOCIATES, LLC, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9328-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 28, 2010

Before Judges Payne and Waugh.

Plaintiff, Jung Sook Lee, appeals from an order of summary judgment entered in favor of defendant, Tenafly Associates, LLC, on her action for return of a deposit of $150,000 on a condominium unit to be constructed by defendant and for return of $56,851 paid by plaintiff for extras in connection with the construction. She appeals, as well, from the denial of her motion for reconsideration.

I.

The record reflects the following facts. On October 19, 2005, plaintiff entered into a contract, effective November 2, 2005, for the purchase of a to-be-constructed condominium, located in Teaneck, for a purchase price of $1,500,000. A deposit of $150,000 was given. Paragraph 1.1(d) of the contract provided that:

It is anticipated the closing will take place [in] approximately November 2006 ('Anticipated Closing Date'). For purposes of establishing a date for the closing of title, the Unit shall be deemed completed and ready for occupancy when the Seller has obtained a Certificate of Occupancy pursuant to Paragraph 9.

However, paragraph 7, entitled "Delay of Closing," stated in relevant part:

The Purchaser(s) understands and agrees that if the Unit is not completed and ready for occupancy on the date specified in this Contract for closing of title, the Purchaser(s) will accept the Deed and pay the purchase price on the date when a Certificate of Occupancy pursuant to Paragraph 9 has been issued. The Purchaser(s) agrees that there will be no reduction in the purchase price for this delay. If the Seller is not able, for reasons beyond its control, to deliver the Deed on the date set for closing, the Seller may postpone the closing for up to six (6) months from the date originally scheduled for closing. To exercise this right, prior to the Anticipated Closing Date, the Seller must notify the Buyer in writing that the closing has been postponed. In the event Seller is unable to deliver the Deed to the Purchaser for reasons beyond the Seller's control and the six (6) month period has expired, then, either party may terminate this Agreement by so notifying the other in writing. If this Agreement is so terminated by the one party, the Purchaser will receive the deposit moneys paid plus all extra features paid to the Seller under this Agreement within ten (10) business days.

Paragraph 3.5 required the buyer to make selections for finishes, accessories, fixtures and other items "within thirty (30) calendar days ('Timely Selection') after the expiration of the Buyer's right to rescind or the end of the Attorney Review Period, whichever is last to occur." The paragraph further provided what would take place if timely selection did not occur.

In the event Purchaser(s) fails to make a Timely Selection of any finishes, accessories, fixtures or other item requested by the Seller then, at Seller's option, Seller shall have the right to make the selection(s) for the Purchaser(s) and Purchaser(s) shall have no right to object, seek to reduce the Purchase Price or delay the completion of the project or the closing date. At Seller's option, the closing date shall be extended for a period of time equal to the Purchaser(s) delay in making a Timely Selection plus any other delay caused by the Purchaser(s) failure to make a Timely Selection.

Paragraph 3.5 did not contain a notification provision. However, paragraph 21.1 of a section captioned "Notices" provided:

Any notice, option, election, demand or other communication (collectively a "Communication") required, permitted, or desired to be given under this ...


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