Justice Barbara Jaffe
Soho Room moved for summary judgment on its counterclaim to retain plaintiffs' contract down payment for the purchase of a restaurant as liquidated damages. The closing of the sale between the parties was conditioned on the State Liquor Authority's approval of Park's application of an on-premises liquor license, and assignment to him by Soho's landlord of the existing lease, including an extension of the lease after expiration. Plaintiffs argued they were warranted in terminating the agreement as it was apparent the transaction could not be consummated due to landlord's failure to grant an extension if the premises continued to be operated as a bar. Soho claimed plaintiffs breached a modification agreement by failing to bring the bar's manager to meet with the landlord. The court stated the doubts expressed by Park regarding the landlord's approval of the extension and problems with the liquor license were self-serving and bereft of any support in the record. It noted even if landlord did not grant the extension, Park offered no evidence it was anything other than his failure to comply with a request to meet the manager. Thus, Soho demonstrated the agreement was in effect and plaintiffs failed to comply, entitling it to retention of the down payment.