Co-Op Accused of Interfering With Shareholder’s Exclusive Right to Utilize Terrace—Issues of Fact Require Denial of Seller’s Motion for Declaratory Judgment With Respect to Retention of the Contract Deposit—Implied Covenant of Good Faith and Fair Dealing
The issue on the subject appeal to the Appellate Division (court) was “whether a buyer can be forced to conclude a purchase of real property where the seller has not definitively resolved a third-party cooperative’s challenge to the buyer’s right of exclusive use over a portion of the property.” The court found that the existence of questions of fact “as to whether the seller obtained unequivocal assurances that the co-op’s board of directors” (board) “would not interfere with the buyer’s right of exclusivity,” preclude the court from determining whether the seller was “ready, willing, and able to close the sale.” There were also “questions of fact as to whether the seller breached the implied covenant of good faith and fair dealing.” Accordingly, the court held that “the seller is not entitled to summary judgment permitting it to retain the buyer’s down payment.”
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