approval as the Colacinos were not obligated to determine the status of the Application prior to
exercising their option to cancel, and the Board had already made its determination.
Thus, assuming that the Colacinos were not otherwise prohibited from cancelling the
Agreement, their cancellation of the Agreement by the Notice of Cancellation would have been
valid because the Board did not provide unconditional approval of the sale of the Apartment on
or prior to the Adjourned Closing Date. However, it is well established that a party to a contract
cannot rely on the nonoccurrence of a condition precedent where that party has frustrated or
prevented the occurrence of the condition. See Creighton v. Milbauer, 191 AD2d 162,
165 (1st Dep't 1993); Garber v.
Giordano, 16 AD3d 454 (2nd Dep't 2005); Kapur v. Stiefel, 264 AD2d 602, 603
(1st Dep't 1999); Moustakas v. Noble, 259 AD2d 602 (2nd Dep't), lv app dism 93
NY2d 958 (1999). Here, there are questions of fact as to whether the failure of the parties to
obtain the Corporation's unconditional approval by the Adjourned Closing Date was a
circumstance of the Colacinos' own making.
Paragraph 6.2 of the Agreement requires the Colacinos to submit their Application to
the Corporation in good faith, and Paragraph 6.4 of the Agreement provides that if the
Corporation fails or refuses to give its unconditional consent due to the Colacinos' bad faith
conduct, then the Colacinos were in default. A prospective purchaser of real property who
breaches his obligations of good faith may not cancel a contract for the sale of such property and
receive his down payment back. See Lipshy v. Sabbeth, 134 AD2d 409 (2nd Dep't 1987);
Moustakas v. Noble at 603.
In this case, there is evidence sufficient to raise a triable issue of fact as to whether