Solomon relist the Apartment and try to sell it. The Sellers eventually received another offer for
[*6]$3,700,000.00, which Andrews accepted. The sale was closed
on May 3, 2010. In addition to receiving a lower purchase price, the Sellers also had to pay
maintenance and carrying charges prior to the sale of the Apartment to the third-party purchaser.
The Colacinos now move for partial summary judgment on the issue of their
entitlement to the return of a Security Deposit and seek an order directing Ebert to pay over the
Security Deposit to them. The Colacinos argue that they are entitled to the return of the Security
Deposit under the terms of the Agreement because they timely and properly exercised their
option to cancel the Agreement upon the failure of the Board to timely and unconditionally issue
consent to their purchase of the Apartment, "much less issue a consent letter." They also maintain
that the Adjourned Closing Date was the deadline for Closing on the Apartment to occur, not
merely the issuance of consent by the Board.
The Colacinos argue that the Board's requirement that they provide proof of the sale
of the Beach Street Residence prior to closing on the Apartment was an impermissible condition,
allowing them to cancel the Agreement under Paragraph 6.1 of the Contract. They also assert that
Paragraph 20 of the Sellers' Rider, which states that the Colacinos' obligations under the
Agreement are not subject to the sale of any property owned by the Colacinos, shows that the sale
of the Beach Street Residence was not a permissible condition of the Board's consent.
Alternatively, the Colacinos argue that if the Notice of Cancellation was ineffective,
the Sellers were required to offer to close and attempt to schedule a "time of the essence" closing