Barnes & Barnes, P.C., represented the Seller of a commercial real estate complex and recovered a $1 million down payment, plus counsel fees and nearly $500,000 in pre-judgment interest, after the Purchaser defaulted.
Challenge
B&B’s client was selling a commercial real estate complex; the Purchaser placed the $1 million down-payment in escrow pending closing, which was a “time of the essence” closing date. The Purchaser failed to appear at the Closing with the proceeds necessary to complete the purchase, despite explicit representations and warranties in the Contract of Sale stating that it did, in fact, have sufficient funds to complete the purchase.
After the Purchaser failed to complete the purchase, it filed a lawsuit against B&B’s client, the Seller, alleging that it was the Seller, not the Purchaser, which had breached the contract, and requested a declaratory judgment that the Purchaser was entitled to keep the $1 million down-payment and likewise requested the Purchaser’s counsel fees and prejudgment interest.
Solution
B&B devised a strategy to expedite the resolution of the litigation. In that regard, it Answered the Complaint and filed a Counterclaim, detailing for the Court the factual basis for the Seller’s allegations that the Purchaser in fact breached the Contract, not the Seller. As soon as the Purchaser filed its Reply to the Counterclaims, B&B filed an immediate, pre-discovery motion for summary judgment, requesting that the Court dismiss the action against the Seller, and grant B&B’s motion for summary judgment, ordering that the Seller was entitled to receive and retain the $1 million down-payment.
Result
The trial court granted B&B’s pre-discovery motion for summary judgment, and awarded B&B’s Client the $1 million down-payment, 100% of its counsel fees, and nearly $500,000 in pre-judgment interest at the rate of 9% per annum.
After this complete vindication of B&B’s Client’s cause, the Purchaser appealed the Decision to the Appellate Division, First Department. On Appeal, after oral argument before five (5) Justices of the Appellate Division, the First Department unanimously affirmed the trial Court order and awarded costs on the appeal.