Insight

The Persistence of Adam Leitman Bailey, P.C. in the Face of Judicial Hostility Allows Divorcing Woman to Obtain Refund of Condominium Contract Deposit

The Persistence of Adam Leitman Bailey, P.C. in the Face of Judicial Hostility Allows Divorcing Woman to Obtain Refund of Condominium Contract Deposit

Andrew Jorges

Andrew Jorges

August 3, 2021 12:00 PM

A woman who had contracted to purchase a luxury condominium in newly constructed building had become embroiled in an acrimonious divorce. The condominium’s sponsor had given her a “time of the essence” notice requiring her to close by a stated date, or else face the loss of her contract deposit, which was 20% of the purchase price. The sponsor had anticipated that because of the circumstances of the divorce, the woman wouldn’t have the finances to close by the date, and therefore had allowed the buyer of the next-door apartment to file building plans to combine his apartment with the woman’s apartment.

The woman came to Adam Leitman Bailey, P.C., shortly before the closing date, and the firm immediately filed an Order to Show Cause in New York County Supreme Court to stop the closing. At the first court hearing, the sponsor was forced to concede that the apartment was not in the physical condition required in the contract, and withdrew its closing notice. However, the very next day after the sponsor’s in-court withdrawal, it served a new closing notice requiring the woman to close 30 days later, when the sponsor would have the apartment ready for sale.

Adam Leitman Bailey, P.C. filed a second Order to Show Cause, arguing that the closing date should be temporarily stayed because, even though the apartment was physically ready for the closing, the fact that the neighbor had approved building plans that reconfigured the woman’s apartment was a title defect preventing the sponsor from demanding that she close. The sponsor argued that the building plans were just a contingency, and would be withdrawn if the woman actually closed. As the second court hearing, the judge held that the fact of the approved building plans was not a legal impediment to closing, and denied a temporary stay. Despite the judge’s strong suggestion that it would be futile, Adam Leitman Bailey, arguing on behalf of the firm, demanded that the judge schedule a preliminary injunction hearing. The hearing that the court scheduled, however, was after the date the woman would have to close or default.

After the stay was denied by the Supreme Court, the firm filed for a stay in the Appellate Division, but that application was also denied.

All stays having been exhausted, the woman defaulted on her purchase contract.

At the post-default preliminary injunction hearing, the judge explained that in addition to his prior ruling that the approved building plans were not an impediment to closing, the time for closing had now passed. Adam Leitman Bailey argued vehemently that there was no such thing as contingent building plans, as the sponsor contended, and the filed plans were legally improper modification of the condominium unit, and that all of the sponsor’s closing notices were thus void, vitiating any default. Although the judge was highly skeptical, he gave Adam Leitman Bailey less than 48 hours to produce a supplemental brief documenting why the sponsor could not demand that the woman close with the building plans pending.

As directed by the judge, the firm quickly produced a 15-page brief carefully documenting how the Martin Act and the Attorney General’s offering regulations, the law of condominium declarations, the New York City Building Code and the terms of the sponsor’s offering plan all worked together to require that prior to a unit being sold, the condominium declaration and offering plan must both be amended to be in harmony with any approved building plans, and failure to do so was a breach of the sale contract.

Following this supplemental briefing, the judge reversed course and issued a preliminary injunction which reversed the default and provided that the woman could either rescind the contract and obtain a full return of her contract deposit, or the sponsor would have to withdraw the building plans before demanding that the woman close.

Because of the persistence of the Adam Leitman Bailey, P.C. team despite multiple adverse judicial rulings, the divorcing woman was able to free herself of the burden of her pre-divorce condominium purchase contract and obtain a full refund of her contract deposit.

Adam Leitman Bailey, Jeffrey R. Metz, and Andrew Jorges were the Adam Leitman Bailey, P.C. team leading this hard-fought effort.

Related Articles

House Trap


by Heidi E. Storz

Special districts are often being used as profit centers that leave residents to foot the bill. These homeowners deserve protection from unscrupulous developers who attempt to fleece them and avoid accountability.

Special Districts Changing Property Ownership

Announcing the 2022 Best Lawyers: Real Estate and Infrastructure Publication


by Best Lawyers

Featuring the top legal talent from The Best Lawyers in America, Best Lawyers: Ones to Watch in America and "Lawyer of the Year" recipients for real estate and infrastructure as well as thought leadership from some of the nation's top lawyers.

Real Estate and Infrastructure Publication

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Is New Always Better?


by Janice Zhou

The rapid rise of gentrification in major cities leaves residents wondering.

Road facing bridge at sunset

Gimme Shelter


by Janice Zhou

Being able to afford housing in Boston, and other desirable cities like it, is increasingly out of reach for too many. What can be done, legally and politically, to combat the problem?

Housing Shortage in Boston

Great Rebuild


by Best Lawyers

Néstor Méndez discusses labor peace, junk-bond repercussions, and the laudable resilience of those who call this storm-battered island home.

An Interview With Pietrantoni Méndez & Alvare

WATCH: Best Lawyers Discusses COVID-19 & Rental Agreements


by Best Lawyers

Three legal experts join the CEO of Best Lawyers to talk about a general approach to “the rental” market and what happens if tenants can’t pay rent in May.

COVID-19 Panel: Rental Agreements

Impact of Climate Change on Real Estate Law


by Best Lawyers

Dr. Christian Schede discusses rent in large cities, the effect of Airbnb, and more.

An Interview With Greenberg Traurig

Property Rights...and Wrongs


by Chad Cooper and Steven S. Kaufman

Winning a legal battle often boils down to finding and targeting the weakest part of an opponent’s case. Four recent real estate disputes in northeast Ohio are good examples.

Strategies for Real Estate Litigation

Trending Articles

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez


by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing The Best Lawyers in The United Kingdom™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation


by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

Announcing The Best Lawyers in France™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from France.

Blue, white and red strips

Announcing The Best Lawyers in Germany™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes

Education by Trial: Cultivating Legal Expertise in the Courtroom


by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

Announcing The Best Lawyers in Belgium™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Belgium.

Black, yellow and red stripes

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing the 2022 Best Lawyers™ in France


by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in France

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

We Are Women, We Are Fearless


by Deborah S. Chang and Justin Smulison

Athea Trial Lawyers is a female owned and operated law firm specializing in civil litigation, catastrophic energy, wrongful death and product liability.

Athea Trial Law Female Leadership and Success

Announcing the 2022 Best Lawyers™ in Germany


by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in Germany

U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules


by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

Destiny Fulfilled


by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?