On January 4, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Fink v. 218 Hamilton LLC, 2023 NY Slip Op. 30092(U), holding that a time of the essence letter set the deadline to close a purchase transaction, explaining:
It is well settled that where a closing date has been indefinitely postponed then neither party may terminate the contract and declare the other party in default before informing the other party that some affirmative steps must be taken. Thus, it is improper to suddenly attempt to cancel the contract without first notifying the plaintiff that time was of the essence. Consequently, a time of the essence notification must be clear, distinct and unequivocal notice to that effect giving the other party a reasonable time in which to act. The time of the essence letter commenced by noting that “as you know, we represent the Seller of the above mentioned Premises.” The letter continued and stated that “accordingly, the Seller does hereby set November 4, 2021@ 11:00 a.m. as a closing date, TIME BEING OF THE ESSENCE as to the Seller.” The purchaser argues that letter was defective because it was made with actual knowledge that Fink would need another few days to be ready to Close. However, there is no requirement that a time of the essence letter must consider the purchaser’s ability to close by that date. Indeed, if that were the case then the entire expedient of sending such time of the essence letters would be undermined thereby. The case of Klein v. Opert, 218 AD2d 784, 631 NYS2d 70 [2d Dept., 1995] does not demand a contrary result. That case held that a time of the essence letter sent with knowledge that certain certificates or permits could not be obtained by that date, failed to provide the plaintiff with a reasonable time in which to close. In that case the time of the essence letter was sent by the purchaser seeking closing. The seller, however, could not deliver certain certificates or permits that are generally conditions to closing. Thus, since conditions necessary to closing were known to be missing no time of the essence letter was proper. However, in this case, the reason the purchaser was not able to close, due to financing or any other matter, are precisely the reason time of the essence letters are sent altogether.
(Internal quotations and citations omitted).