of the Sellers' Rider states that "[t]his sale and [the Colacinos'] obligations under [the Agreement]
are expressly not subject to the sale of [the Beach Street Residence] or any other real property or
cooperative owned by Purchaser." A plain reading of this provision, which is part of the Seller's
Rider, shows that it was intended to protect the Sellers in the event that Colacinos had not sold
the Beach Street Residence or other piece of property prior to the Closing Date. In other words,
the purpose of the provision was to clarify that the Sellers' obligations under the Agreement were
not contingent on the sale of the Beach Street Residence or other property.[FN6]
Furthermore, the Sellers were not compelled to move forward with the sale of the
Apartment if the failure the Board to unconditionally approve the sale was the result of the
Colacinos' bad faith conduct. If the Colacinos ceased performance under the Agreement but were
not entitled to do so, then they were in material breach of their obligations. Under the doctrine of
anticipatory breach, a wrongful and unequivocal repudiation of a contract prior to the time for
performance entitles the non-breaching party to immediately claim damages for total breach, and
the non-repudiating party need not tender performance nor provide proof of its ability to perform
the contract in the future. See American List Corp. v. U.S. News and World Report, Inc.,
75 NY2d 38, 44 (1989); Conant v. Alto 53, LLC, 21 Misc 3d 1147(A) (1st Dep't 2008).
Thus, to the extent it is found that Colacinos acted in bad faith in connection with their
cancellation of the Agreement, the Sellers were not required to offer further performance in order
to be entitled keep the deposit as liquidated damages.[FN7]