Lake Hills Swim Club, Inc., Respondent, v. Samson Development Corp., Appellant

Lake Hills Swim Club, Inc., Respondent, v Samson Development Corp., Appellant. [624 NYS2d 277] [MAJORITY] —In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Nassau County (Kohn, J.), dated December 15, 1993, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $100,000. Ordered that the judgment is affirmed, with costs. Contrary to the defendant’s contention, the record is replete with evidence that it failed to act with the requisite due diligence in prosecuting its application for a variance. Accordingly, the defendant was not entitled to cancel the contract on the ground that it did not obtain the variance by the date specified in the contract. In addition, the plaintiffs letter dated September 6, 1991, which specified that time was of the essence and directed a closing date of October 7, 1991, was reasonable under the circumstances of this case (see, Mohen v Mooney, 162 AD2d 664, 665). Accordingly, when the defendant failed to appear for the scheduled closing, at which time the plaintiff was present for the purpose of tendering the deed, it was in default. The plaintiff was thus entitled to retain the $100,000 down payment pursuant to the liquidated damages clause contained in the contract (see, Maxton Bldrs. v Lo Galbo, 68 NY2d 373, 382). Sullivan, J. P., Lawrence, Copertino and Joy, JJ., concur.