Kassal and Rubin, JJ., dissent in a memorandum by Rubin, J., as follows:
This appeal raises the question of whether a seller who was unable to close on a real estate transaction due to its failure to obtain a certificate of occupancy may nevertheless retain, as liquidated damages, a portion of the down payment deposited by the buyer on the ground that the buyer failed to deliver a letter of credit which, under the terms of the contract of sale, comprises the remainder...
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