On December 4, 2024, the Second Department issued a decision in Fink v. 218 Hamilton, LLC, 2024 NY Slip Op. 06026, holding that whether a closing date set in a “time is of the essence” letter was reasonable was a question of fact, explaining:
Where there is an indefinite adjournment of the closing date specified in the contract of sale, some affirmative act has to be taken by one party before it can claim the other party is in default; that is, one party has to fix a time by which the other must perform, and it must inform the other that if it does not perform by that date, it will be considered in default. The notice setting a new date for the closing must (1) give clear, distinct, and unequivocal notice that time is of the essence, (2) give the other party a reasonable time in which to act, and (3) inform the other party that if he [or she] does not perform by the designated date, he or she will be considered in default. It does not matter that the date is unilaterally set, and what constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case. Included within a court’s determination of reasonableness are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance. The question of what constitutes a reasonable time is usually a question of fact.
Under the circumstances presented here, the defendant failed to establish, prima facie, that the October 5, 2021 letter designating November 4, 2021, as the time of the essence closing date provided a reasonable time within which to close. Accordingly, the Supreme Court should have denied that branch of the defendant’s cross-motion which was for summary judgment dismissing the cause of action for specific performance of the contract.
(Internal quotations and citations omitted).