While Rivera claimed that some of those funds had been embezzled by her attorney, seller Kent Konkol still had his attorney send a letter advising Rivera that she had violated the contract of sale's "time of the essence" provision and thus forfeited her downpayment.
When Rivera filed suit, the Bronx County Supreme Court sided with her, and found the letter sent by Konkol's lawyer hadn't provided a clear and unequivocal statement her failure to close on or before October 18, 2006, would be considered a default upon which she would lose her down payment.
On appeal, the Appellate Division, First Department, reversed because any irregularity with the attorney's letter wasn't "the dispositive issue." According to the AD1, neither the alleged embezzlement nor her failure to obtain a mortgage, excused Rivera's non-performance. Thus, her downpayment could be released to the seller.
Clearly, Konkol was on solid ground.*
To download a copy of the Appellate Division's decision, please use this link: Rivera v. Konkol
*Konkolo is Zulu for "concrete" or "solid foundation."