cancel [the Agreement]." Furthermore, under Paragraph 6.1 of the Agreement the sale of the
Apartment is subject to the unconditional consent of the Board. Here, it is uncontroverted that the
Corporation did not give unconditional consent to the purchase before the adjourned closing date
of the October 15, 2009, since it required the sale of the Beach Street Residence prior to its
approval.
In fact, it is evident from Spiegel's affidavit that the requirement that the Colacinos
sell the Beach Street Residence (and provide proof thereof) was a condition on the Board's
approval. Spiegel states in her affidavit that she and the other members of the Board who
interviewed the Colacinos agreed that the Colacinos "should be approved to purchase the
[Apartment] but that such approval be conditioned upon the sale of the [Beach Street
Residence] prior to closing." This statement along with Spiegel's statement that she advised
Sledge-Goodwine that the Colacinos' application was approved "subject to the sale of the [Beach
Street Residence] prior to the closing of [the Apartment]" demonstrate that the Board's approval
was dependent upon a future occurrence of significance, the sale of the Beach Street Residence.
As such, it was a condition on the Board's consent, and the Seller's attempt to re-label this
condition as a [*9]contingency or accommodation is unavailing.
Additionally, the Sellers have failed to raise an issue of fact as to the validity of the
Notice of Cancellation because it was issued at or around 5:00 p.m. on the Adjourned Closing
Date, after the Board had already made its decision on the Colacinos' Application. It is irrelevant
that the Colacinos issued the Notice of Cancellation prior to learning of the Board's conditional