Angiolillo v. Nevard

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Angiolillo v. Nevard
GLENN ANGIOLILLO ET AL. v. BARRETT
NEVARD ET AL.
(AC 47464)
Alvord, Moll and Seeley, Js.*
Syllabus
The plaintiffs appealed from the trial court’s judgment for the defendants
on the plaintiffs’ complaint for, inter alia, breach of contract, and in part on
the defendants’ counterclaim seeking a declaratory judgment, in connection
with two real estate sales contracts for two of the defendants’ properties. The
plaintiffs claimed, inter alia, that the court improperly interpreted various
provisions of the parties’ contracts. Held:
The trial court properly interpreted the contracts to set January 16, 2019,
as the extended closing deadline following the defendant B’s extension of
the original closing date, as the contracts, in clear and unambiguous terms,
established January 16, 2019, as the extended closing deadline, and this
court rejected the plaintiffs’ proposition that the parties had an additional
twenty-one days following that date to close on the properties.
This court concluded that, although the trial court misconstrued the con-
tracts to provide that, with respect to the closing, time was of the essence,
that error did not warrant reversal of the court’s judgment against the
plaintiffs as they alleged, as the error was not integral to its adjudication
of the plaintiffs’ claims or the defendants’ counterclaim.
The plaintiffs’ claim that there was no contractual basis to determine that
they made an implied election to terminate the contracts failed, as the con-
tracts did not designate any particular method by which the plaintiffs must
make an election to accept or reject such title as B could convey, and there
was nothing in the contracts that prohibited a determination that, through
their conduct, the plaintiffs made an implicit election to cancel the contracts.
There was an adequate factual basis supporting the trial court’s determination
that the plaintiffs made an implied election of cancellation of the contracts,
as it was reasonable for B to have concluded that the plaintiffs’ conduct in
commencing the present action indicated an unwillingness to proceed with
the purchase of both properties in light of a title defect with respect to one
of the properties, and the passage of the extended closing deadline also sup-
ported that determination.
Argued December 9, 2025—officially released September 29, 2026
*The listing of judges reflects their seniority status on this court as
of the date of oral argument.

Angiolillo v. Nevard
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk, where
the defendants filed a counterclaim; thereafter, the case
was tried to the court, Hon. Kenneth B. Povodator,
judge trial referee; judgment for the defendants on the
amended complaint and in part on the counterclaim, from
which the plaintiffs appealed to this court. Affirmed.
Karen L. Dowd, with whom was Kenneth J. Bartschi,
for the appellants (plaintiffs).
Edward N. Lerner, for the appellees (defendants).
Opinion
MOLL, J. The plaintiffs, Glenn Angiolillo (Glenn) and
Gian Angiolillo (Gian), appeal from the judgment of the
trial court rendered in favor of the defendants, Barrett
Nevard, the Leila B. Nevard Living Trust, and Susan J.
Nevard,1 with respect to the plaintiffs’ amended com-
plaint and in part as to the defendants’ counterclaim. On
appeal, the plaintiffs claim that the court improperly (1)
interpreted the real estate sales contracts at issue and (2)
determined that Barrett properly treated their conduct
as demonstrating an “implied” contractual election to
terminate the contracts. We affirm the judgment of the
trial court.
1The summons filed in the present action lists two defendants: (1)
Barrett Nevard; and (2) “Susan J. & Leila B. Nevard Living Trust.” The
plaintiffs’ original and amended complaints, however, reference three
defendants: (1) Barrett Nevard; (2) the Leila B. Nevard Living Trust,
with Barrett Nevard acting as trustee or cotrustee; and (3) Susan J.
Nevard. The parties’ respective pleadings and appellate briefs further
reflect an apparent understanding that there are three defendants in
the present action, with Susan J. Nevard being distinct from the Leila
B. Nevard Living Trust. This discrepancy is not germane to our analy-
sis of the plaintiffs’ claims on appeal. In the interest of simplicity, we
refer in this opinion to (1) Barrett Nevard, the Leila B. Nevard Living
Trust, and Susan J. Nevard collectively as the defendants and (2) the
individual parties by first name.

Angiolillo v. Nevard
The following undisputed facts, as found by the trial
court or as gleaned from the record, and procedural
history are relevant to our resolution of this appeal. In
September 2018, the plaintiffs and Barrett executed two
real estate sales contracts (contracts), with one contract
governing the sale of 19 Henry Street in Greenwich (19
Henry Street contract) and the other contract govern-
ing the sale of 23 Henry Street in Greenwich (23 Henry
Street contract).2 Before executing the contracts, Barrett
represented to the plaintiffs that both properties were
three-family dwellings. The plaintiffs made a $132,000
deposit in accordance with the contracts.
The contracts, which are substantially identical in
terms, contain the following relevant provisions. Para-
graph 4 of the contracts provides in relevant part that
the respective property deed “shall be delivered . . . on
the 17th day of December, 2018, at 2:00 P.M. or sooner
by mutual agreement of the parties . . . .” Moreover, the
contracts provide that the closing on one property is con-
tingent on a simultaneous closing on the other property.
Paragraph 6 (a) of the contracts provides in relevant
part: “If, upon the date for the delivery of the [respective
property] deed . . . [Barrett] shall be unable to deliver or
cause to be delivered a deed or deeds conveying a good
and marketable title to the [respective property], subject
only to the items set forth in Schedule A3 and [p]aragraph
[6 (e)]4 . . . then [Barrett] shall be allowed a reasonable
2The court found that “[t]he parties” entered into the contracts.
The contracts, which were admitted in full into the record, identify
Barrett as the seller of the properties; however, the contracts further
reflect that Susan J. Nevard and the Leila B. Nevard Living Trust had
interests in one or both properties in September 2018, and the contracts
contemplate certain deeds being “duly executed and recorded on the
Greenwich [l]and [r]ecords thereby establishing 100 [percent] owner-
ship in Barrett . . . .” In the interest of simplicity, we refer to Barrett
as the seller of the properties.
3Schedule A appended to each contract sets forth a description of the
respective property and provides that said property is to be conveyed
subject to, inter alia, “[a]ny and all provisions of any ordinance, munici-
pal regulation or public or private law.”
4Paragraph 6 (e) of the contracts provides that the respective prop-
erty will be conveyed subject to, inter alia, governmental restrictions,

Angiolillo v. Nevard
postponement of closing not to exceed thirty (30) cal-
endar days, or such shorter time as may be within the
term of the [plaintiffs’] mortgage commitment, within
which to perfect title. If at the end of said time [Bar-
rett] is still unable to deliver or cause to be delivered a
deed or deeds conveying a good and marketable title to
[the respective property], subject as aforesaid, then the
[plaintiffs] (i) may elect to accept such title as [Barrett]
can convey, without modification of the purchase price,
or (ii) may reject such title. Upon such rejection, all sums
paid on account hereof, together with any nonrefundable
expenses actually incurred by the [plaintiffs] in the aggre-
gate not to exceed the cost of an A.L.T.A. Homeowner’s
Policy (or the equivalent thereof) based on the amount of
the purchase price shall be paid to the [plaintiffs] without
interest thereon. Upon receipt of such payment, [the
respective contract] shall terminate and the parties . . .
shall be released and discharged from all further claims
and obligations [t]hereunder. [Barrett] shall be entitled
to require [the plaintiffs] to provide reasonable proof of
payment of said expenses.” (Footnotes added.)
Paragraph 16 of the contracts provides in relevant
part: “In no event shall the closing, or any extension
thereof, take place later than twenty-one (21) calendar
days from the date of closing set forth in [p]aragraph 4 . .
. subject to the provisions of [p]aragraphs 6 and 11.5 . . .”
(Footnote added.)
Paragraph 26 of the contracts provides in relevant
part: “[A]ll representations by [Barrett] are made to the
best of [Barrett’s] knowledge and belief and without duty
of inquiry. [Barrett] shall have an affirmative obligation
to notify [the plaintiffs] if any of [the] representations
[made in the respective contract] are no longer true.
Except in the event of an intentional misrepresentation,
limitations, regulations, ordinances, and/or public laws, provided that
said property is not in violation of the same at the time of the closing.
5Paragraph 11 of the contracts concerns risk of loss or damage by fire
or other casualty. As the trial court, Hon. Kenneth B. Povodator, judge
trial referee, determined, and we agree, the provisions of paragraph 11
are immaterial to the claims adjudicated in the present action.

Angiolillo v. Nevard
if [the plaintiffs discover] prior to the closing of title
any material representation contained in [the respective
contract] . . . to be untrue or inaccurate, the remedy of
the parties shall be those available to them in the event
of a valid defect in or objection to title, as set forth in
paragraph [6 (a)] . . . .”
Attached to and incorporated into the contracts is a
purchaser’s rider, which provides in relevant part: “[Bar-
rett] represents that all certificates of occupancy or other
governmental approvals in connection with the current
use of the [respective property] as three residential units
. . . have been obtained. . . . If, prior to [c]losing, [the
plaintiffs learn] that a violation exists, the remedy of
the parties shall be those available to them in the event
of a defect in title. Notwithstanding the foregoing, [Bar-
rett] shall have a good faith obligation to cure any and
all violations prior to [c]losing.”
On November 2, 2018, the plaintiffs6 emailed Barrett’s
real estate attorney, Christopher A. Kristoff, raising a
concern as to whether the 23 Henry Street property was
approved by the town of Greenwich (town) to be a three-
family dwelling and requesting proof of such approval.
On November 6, 2018, Attorney Kristoff replied that
“the [t]own carrie[d] [the 23 Henry Street property] as
a [three-family dwelling] . . . .”
On December 4, 2018, Attorney Kristoff emailed Glenn
a letter stating that the town’s building department
identified the 23 Henry Street property as a two-family
dwelling, such that Barrett did “not have ‘all certifi-
cates of occupancy or other governmental approvals
in connection with the current use of the [p]remises as
three residential units’ ” as required under the 23 Henry
Street contract. This letter further stated that “[i]t is
[Barrett’s] position that this represents a defect in title
that cannot be cured under the [t]own’s current [b]uilding
[c]ode and [z]oning laws. Now that [the plaintiffs have]
6The November 2, 2018 email was sent by Glenn with Gian copied on the
email. In the interest of simplicity, we treat emails sent to or by Glenn
with Gian copied as having been sent to or by the plaintiffs collectively.

Angiolillo v. Nevard
this information, unless [the plaintiffs are] prepared to
close simultaneously on both [properties] . . . [Barrett] is
prepared to return to [the plaintiffs] all sums paid under
the [c]ontract[s] . . . .” Additionally, this letter stated
that, until the aforementioned issue was resolved, Bar-
rett could not confirm a closing that had been scheduled
for December 10, 2018, with respect to the 19 Henry
Street property.7
On December 7, 2018, the plaintiffs emailed Attorney
Kristoff stating that Barrett was obligated to close on the
19 Henry Street property, and, if he refused to close on
December 10, 2018, the plaintiffs “intend[ed] to pursue
all of their legal remedies . . . .” Additionally, as to the 23
Henry Street property, the plaintiffs stated in relevant
part that (1) pursuant to the 23 Henry Street contract,
Barrett had a good faith obligation to cure any and all
violations prior to closing, (2) Barrett had not informed
the plaintiffs as to what steps had been taken to cure the
“violation” caused by the 23 Henry Street property not
being approved by the town as a three-family dwelling,
and (3) Barrett’s failure to cure this “violation” consti-
tuted a breach of the 23 Henry Street contract.
On December 14, 2018, Attorney Kristoff emailed the
plaintiffs an offer to reduce the price of the 23 Henry
Street property by $25,000.8 The plaintiffs “apparently
rejected” this offer.
On December 17, 2018, the original closing date identi-
fied in the contracts, Attorney Kristoff emailed a letter to
7In a December 3, 2018 email to Attorney Kristoff, which was admit-
ted in full into the record, the plaintiffs, in accordance with a provision
in the 19 Henry Street contract, provided advance notice to Barrett
that a closing on the 19 Henry Street property was to be scheduled for
December 10, 2018.
8In the December 14, 2018 email, which was admitted in full into
the record, Attorney Kristoff further requested that (1) the $25,000
price reduction be effectuated by way of an amendment to the 23 Henry
Street contract, (2) other provisions of the 23 Henry Street contract be
amended with respect to “the [three] family and violation issues,” (3)
the parties agree to mutual releases “given the threat of lawsuits,” and
(4) the parties close on both properties on December 21, 2018.

Angiolillo v. Nevard
the plaintiffs, which letter was addressed to Glenn only,
(1) maintaining that a title defect existed as to the 23
Henry Street property and (2) exercising Barrett’s right
under paragraph 6 (a) of the contracts to “a reasonable
postponement of the closing not to exceed thirty (30)
calendar days . . . within which to perfect title by seek-
ing a variance with the [t]own to convert [the] 23 Henry
Street [property] to a [three]-family house.” Attorney
Kristoff further represented that, alternatively, “[Bar-
rett] is prepared to return to [the plaintiffs] all sums
paid under the [c]ontract[s] pursuant to the terms of
said [paragraph 6 (a)], should [the plaintiffs] so desire.”
On December 19, 2018, Attorney Kristoff emailed a
letter to Glenn accompanied by a copy of a zoning viola-
tion notice that he had received with respect to the use of
the 23 Henry Street property as a three-family dwelling.
This letter stated that (1) on the basis of communications
with the town’s zoning enforcement officer about apply-
ing for a variance to permit the 23 Henry Street property
to be utilized as a three-family dwelling, “all indications
are that the [t]own would deny that request based upon
current [r]egulations,” and (2) Barrett had decided to
submit an application seeking the town’s approval to
treat the third unit at the 23 Henry Street property as
an affordable housing unit under the town’s regulations,
and he was “cautiously optimistic” about securing such
approval, “thereby allowing [him] to perfect title and
move forward with a simultaneous closing o[n] [both
properties] within a reasonable time.” Additionally, this
letter requested that Glenn inform Attorney Kristoff if
he “object[ed] to this approach or prefer[red] [that Bar-
rett] . . . return all sums paid under the [c]ontract[s] . . . .”
The plaintiffs subsequently rejected this proposal.
On December 26, 2018, Glenn emailed Attorney Krist-
off requesting a phone call, whereupon he received an
automatic response reflecting that Attorney Kristoff
was out of the office from December 21, 2018, through
January 2, 2019. On January 7, 2019, Attorney Kristoff
emailed a letter to Glenn setting forth a “ ‘final offer’ ” to

Angiolillo v. Nevard
be effectuated by way of an amendment to the 23 Henry
Street contract (January 7, 2019 letter). The January 7,
2019 letter proposed in relevant part that (1) the price
for the 23 Henry Street property be reduced by $30,000,
(2) the plaintiffs acknowledge that a title defect exists
as to the 23 Henry Street property that Barrett can-
not cure, (3) the plaintiffs accept title to the 23 Henry
Street property with the title defect, and (4) the parties
exchange mutual releases. The January 7, 2019 letter
further provided that (1) “[n]o agreement exists unless
and until the [p]arties have executed and exchanged an
amendment to the [23 Henry Street] [c]ontract” and (2)
“[i]n the alternative, if these terms are not acceptable,
[Barrett] will take the position that the defect in title
cannot be cured and will return to [the plaintiffs] all
sums paid under the [c]ontract[s] per [p]aragraph [6 (a)].”
On January 15, 2019, the plaintiffs commenced the
present action. On January 16, 2019, Attorney Kristoff
sent a letter to Glenn (January 16, 2019 letter). Attor-
ney Kristoff stated that he was interpreting the lack of
a response to the January 7, 2019 letter “as a rejection
of [the defective] title [to the 23 Henry Street property]
per paragraph [6 (a)] of the [c]ontract[s]” and that he was
enclosing a check in the amount of $132,000, thereby
tendering a return of the plaintiffs’ deposit on both
properties. Thus, by way of the January 16, 2019 letter,
Barrett withdrew the offer proposed in the January 7,
2019 letter and deemed the contracts to be terminated.
In their amended complaint dated July 3, 2023, which
was the operative complaint,9 the plaintiffs asserted
claims for (1) breach of contract and (2) breach of the
implied covenant of good faith and fair dealing.10 In
support of their breach of contract claim, the plain-
tiffs alleged that (1) the defendants failed, refused, or
9The plaintiffs filed the amended complaint with leave of the trial
court, Hon. Kenneth B. Povodator, judge trial referee.
10The amended complaint also set forth counts sounding in (1) fraud,
(2) so-called “fraud by negligent misrepresentation,” and (3) a viola-
tion of the Connecticut Unfair Trade Practices Act, General Statutes §
42-110a et seq. These counts are not relevant to this appeal.

Angiolillo v. Nevard
neglected to convey the title to the 19 Henry Street prop-
erty to them notwithstanding that they had informed
the defendants that they were ready, willing, and able to
consummate the 19 Henry Street contract and to close
on December 10, 2018, and (2) the defendants failed to
comply with various provisions of the 23 Henry Street
contract and made a materially false representation that
the 23 Henry Street property was a three-family dwell-
ing. In support of their breach of the implied covenant of
good faith and fair dealing claim, the plaintiffs alleged
that the defendants had acted in bad faith by misleading
and misrepresenting the legal use and value of the 23
Henry Street property, “refusing to cure the defects,”
and failing to adjust the price of the 23 Henry Street
property. The amended complaint also contained a stand-
alone count seeking specific performance with respect to
both properties.11 On June 5, 2019, the defendants filed
an answer denying the plaintiffs’ material allegations or
leaving the plaintiffs to their proof.12
Additionally, on June 5, 2019, the defendants filed a
two count counterclaim (1) seeking a declaratory judg-
ment that the contracts had been terminated and (2)
alleging slander of title. On June 14, 2019, the plaintiffs
filed an answer denying the defendants’ material allega-
tions or leaving the defendants to their proof.
11In their original complaint, the plaintiffs sought specific performance
with respect to the 19 Henry Street property only. In their amended com-
plaint, the plaintiffs sought specific performance as to both properties.
12The defendants also asserted special defenses as to each claim asserted
by the plaintiffs. On June 14, 2019, the plaintiffs filed a reply denying
the defendants’ special defenses.
The defendants’ answer and special defenses were directed to the
plaintiffs’ original complaint. The defendants did not plead further.
See Practice Book § 10-61 (“When any pleading is amended the adverse
party may plead thereto within the time provided by Section 10-8 or,
if the adverse party has already pleaded, alter the pleading, if desired,
within ten days after such amendment or such other time as the rules
of practice, or the judicial authority, may prescribe, and thereafter
pleadings shall advance in the time provided by that section. If the
adverse party fails to plead further, pleadings already filed by the
adverse party shall be regarded as applicable so far as possible to the
amended pleading.”).

Angiolillo v. Nevard
The case was tried to the court, Hon. Kenneth B. Povo-
dator, judge trial referee, on July 6 and 7, 2023. The
court heard testimony from several witnesses and admit-
ted various exhibits into the record. Following trial, the
parties filed posttrial briefs.
On February 26, 2024, the court issued a memorandum
of decision rendering judgment in the defendants’ favor
with respect to (1) the entirety of the plaintiffs’ amended
complaint and (2) the portion of their counterclaim seek-
ing declaratory relief.13 The court made the following
relevant findings and conclusions. Barrett’s representa-
tion to the plaintiffs that the 23 Henry Street property
was a three-family dwelling constituted an unintentional
misrepresentation, which created a “defect-in-title” issue
subject to paragraph 6 (a) of the contracts. With respect
to the closing, the contracts (1) provide that time was
of the essence and (2) authorize Barrett to exercise an
option for a single extension of the original closing date
for up to thirty days (that is, up to January 16, 2019), in
order to perfect a defective title, which option Barrett
exercised. In the weeks leading up to January 16, 2019,
the plaintiffs made “no substantive communications
that might be characterized as the [plaintiffs partici-
pating] in an [attempt] to resolve the [title defect] issue
. . . .” (Internal quotation marks omitted.) In contrast,
Barrett made “documented efforts . . . to keep the plain-
tiffs informed about [his] efforts to correct the problem
and propos[ed] alternatives . . . .” Specifically, Barrett
proposed (1) applying for approval to convert the third
unit at the 23 Henry Street property into an affordable
housing unit, which the plaintiffs rejected, (2) applying
for approval to convert the 23 Henry Street property into
a legal three-family dwelling, which, as Barrett reason-
ably determined, was not a reasonably feasible option
“based on the high likelihood of it being unsuccessful
(with time and expense presumably to be incurred in a
likely futile effort)”; (footnote omitted); (3) structurally
13The court rendered judgment in the plaintiffs’ favor on the portion
of the defendants’ counterclaim alleging slander of title. The defendants
have not cross appealed from that portion of the judgment.

Angiolillo v. Nevard
converting the 23 Henry Street property into a legal two-
family dwelling, which “[t]here had been no indication
of any willingness of the plaintiffs to accept” and which,
as Barrett reasonably determined, was not a reasonably
feasible option because “there was no credible evidence
that the entire process of [evicting the tenant of the third
unit] and renovation could be accomplished in a reason-
able time and at a reasonable cost,” and (4) amending the
23 Henry Street contract, inter alia, to reduce the price
of the 23 Henry Street property by $25,000, which the
plaintiffs “apparently rejected . . . .”
Subsequently, by way of the January 7, 2019 letter,
Barrett offered to amend the 23 Henry Street contract,
inter alia, by reducing the price of the 23 Henry Street
property by $30,000, but “the [plaintiffs’] only known
‘answer’ to the offer” was the commencement of the
present action on January 15, 2019. Barrett reasonably
construed the commencement of the present action as a
rejection of the offer proposed in the January 7, 2019
letter, as well as to the sales contemplated by the con-
tracts as executed.
Rather than electing one of the two options available
to them under paragraph 6 (a) of the contracts following
Barrett’s inability to cure the title defect as to the 23
Henry Street property—accepting the defective title to
the 23 Henry Street property as is or rejecting said title
and cancelling the contracts—“[t]he plaintiffs appar-
ently elected a third option [which was to] do nothing,
insist that [Barrett] had not done enough or offered to
do enough, [and] start litigation, all the while stating
that they were under no obligation to make an election of
the contract option they chose to assert.” Indeed, there
was no evidence that, at any relevant time, the plaintiffs
were willing to elect a contractually designated remedy
in response to Barrett’s failure to cure the title defect.
Moreover, there was no credible evidence reflecting that,
prior to amending their original complaint in the present
action in 2023, the plaintiffs were willing to proceed with
a closing on both properties with the title defect in place

Angiolillo v. Nevard
or in accordance with the offer proposed in the January
7, 2019 letter.14 In contrast, Barrett was willing either to
proceed with a closing on both properties, including at a
reduced price, with the title defect in place or to refund
the plaintiffs’ deposit.
Additionally, the January 16, 2019 letter “technically
might be considered to have been ‘early’ by a matter of
hours,” as the extended closing deadline expired on Janu-
ary 16, 2019. Nevertheless, “[a]s a practical matter, that
[was] of no consequence [because] [t]here was no evidence
that anyone was prepared to go forward with a closing
on January 16, 2019, but for the [January 16, 2019]
letter, with an overlay of no evidence that the plaintiffs
would have been willing to go forward with a closing on
[the] 23 Henry Street [property] based on the situation
then existing.”
As to the plaintiffs’ breach of contract claim, the court
concluded that the defendants did not materially breach
the contracts. First, insofar as the plaintiffs asserted
that the defendants breached the contracts by failing
to convey the 19 Henry Street property separately from
the 23 Henry Street property, the court determined that
the contracts expressly required that both properties be
conveyed simultaneously, such that the plaintiffs were
not entitled to a standalone sale of the 19 Henry Street
property. Second, insofar as the plaintiffs asserted that
the defendants breached the contracts by failing to sched-
ule a closing on or before January 16, 2019, the court
determined that there was no evidence that the plaintiffs
were prepared to proceed with a closing on both properties
on or before that date, ergo no closing could have been
scheduled. Third, insofar as the plaintiffs asserted that
the defendants breached the contracts by failing to cure
the title defect regarding the 23 Henry Street property
prior to January 16, 2019, the court iterated that (1)
14The court determined that the plaintiffs made a “strategic and
intentional” decision to seek specific performance with respect to the
19 Henry Street property only in their original complaint, whereas they
sought specific performance with regard to both properties in their
amended complaint. See footnote 11 of this opinion.

Angiolillo v. Nevard
the contracts permitted Barrett to extend the closing
up to January 16, 2019, and (2) there were no feasible
options to correct the defect within a reasonable period
of time, even if January 16, 2019, were not the “outer
limit for a closing . . . .”15 Fourth, insofar as the plaintiffs
asserted that the defendants breached the contracts by
withdrawing the offer proposed in the January 7, 2019
letter to sell the 23 Henry Street property at a reduced
price, the court determined that the offer “was not part
of any existing obligation, but it tend[ed] to reinforce
the desire of [Barrett] to proceed with the transaction,
even with a price adjustment not required or suggested
as part of the contract performance obligation of [Bar-
rett]. It [was] a measure of good faith in attempting to
make the deal feasible.”
Additionally, the court rejected the plaintiffs’ request
for specific performance with respect to both properties
because “[t]here [was] no breach that would support
such a remedy. [Barrett was] not only willing to proceed
with the . . . contracts as a package, as intended by the
provisions of the [contracts], but extracontractually [he]
had offered to reduce the price for [the] 23 Henry Street
[property]. The court has concluded that [he] reasonably
concluded, in good faith, that it was unlikely that [he]
could obtain a change in legal characterization of the
[23 Henry Street] property from the [town’s] appropri-
ate land use agency . . . and that other options were not
15The court further determined that one of the corrective options
proposed by Barrett—structurally converting the 23 Henry Street
property into a legal two-family dwelling—would not cure the title
defect because “[t]he defect was the representation that the structure
could legally be used as a three-unit structure and removal of a unit
would not correct the defect to the extent that the defect properly is
characterized as a representation that the [23 Henry Street] property
legally could have three tenants. Simplistically, this would eliminate
any illegality of use of the structure, but would not cure the inaccurate
and improper representation that the [23 Henry Street] property could
legally be used for occupancy by three tenants . . . . In a sense, then,
this would be similar to the price reduction proposal—a possible means
to facilitate the transaction but requiring something in the nature of
a modification to the [23 Henry Street contract] rather than a cure of
a contractually defined title defect.”

Angiolillo v. Nevard
practical or had been rejected by the plaintiffs.” The
court further determined that (1) the plaintiffs were not
ready, willing, and able to proceed with a closing on both
properties on or before January 16, 2019, and (2) it would
be inequitable to order the sale of both properties on the
basis of terms negotiated more than five years earlier,
particularly as there was no evidence that the plaintiffs
had been willing to purchase both properties on an as is
basis prior to the commencement of the present action,
and in light of the possible impact of the COVID-19 pan-
demic on property values.16
As to the plaintiffs’ breach of the implied covenant of
good faith and fair dealing claim, the court stated that
“[t]here appear to be only two . . . categories of conduct
[following the execution of the contracts] seemingly
alleged [by the plaintiffs] and presented via evidence.”17
First, the plaintiffs asserted that Barrett did not act
diligently in seeking to cure the defect vis-à-vis the 23
Henry Street property, particularly by failing to apply
for a variance to permit its use as a three-family dwell-
ing. The court determined that Barrett did not act in bad
faith in this regard because there were no “reasonable
mechanisms for curing the [title defect] in a reasonable
time and at a reasonable expense . . . .” With respect to the
16The court also determined that “there were . . . critical gaps—an
almost total lack of evidence—as to damages for each of the plaintiffs’
claimed causes of action.”
17Insofar as the plaintiffs relied on Barrett’s misrepresentation regard-
ing the 23 Henry Street property to support their breach of the implied
covenant of good faith and fair dealing claim, the court rejected that
reliance because “conduct before a contract was signed cannot be bad
faith performance of that contract.” See Macomber v. Travelers Prop-
erty & Casualty Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002) (“It is
axiomatic that the . . . duty of good faith and fair dealing is a covenant
implied into a contract or a contractual relationship. . . . The covenant
of good faith and fair dealing presupposes that the terms and purpose of
the contract are agreed upon by the parties and that what is in dispute is a
party’s discretionary application or interpretation of a contract term. . . .
In accordance with these authorities, the existence of a contract between
the parties is a necessary antecedent to any claim of breach of the [cov-
enant] of good faith and fair dealing.” (Citations omitted; emphasis
omitted; internal quotation marks omitted.)).

Angiolillo v. Nevard
plaintiffs’ proposition that Barrett should have applied
for a variance, the court “credit[ed] the reasonableness
of [Barrett’s] assessment of the situation” and iterated
that “an administrative procedure such as that would
require some period of time . . . [and] would require an
indefinite extension [of the closing] with no assurance
of success (or even reasonable basis that the application
would be successful).” The court further determined
that Barrett acted in good faith by offering to reduce the
price of the 23 Henry Street property, comprising “an
extracontractual effort to effectuate performance of the
contract[s] . . . .” As the court summarized, “there is a
failure [by the plaintiffs] to explain how or why offering
to comply with contractual remedies—with an added
option of an offered adjustment of the sale[s] price for
[the] 23 Henry Street [property]—might be considered
a breach of the [implied] covenant of good faith and fair
dealing. [Barrett] did not do anything that, in bad faith,
deprived the plaintiffs of a benefit to which they were
entitled under the contracts.”
The court next considered the plaintiffs’ contention
that Barrett acted in bad faith by deeming the contracts
terminated by way of the January 16, 2019 letter. The
court stated that the evidence “was equivocal” as to
whether the January 16, 2019 letter stemmed directly
from the commencement of the present action the day
before or “simply coincided with the end of the maxi-
mum thirty day extension for a closing”; nevertheless,
“to the extent that the commencement of the [present
action] may have been the triggering event for deem-
ing the contracts terminated . . . the court conclude[d]
that that was not a violation of the [implied] covenant
of good faith and fair dealing.” As the court elaborated,
“[b]eing sued approximately one week after having made
an offer to reduce the price for [the] 23 Henry Street
[property]—with being served the only known ‘answer’
to the offer—it would not be unreasonable [for Barrett]
to interpret that answer as ending discussions, including

Angiolillo v. Nevard
rejection of a nonrequired offer to reduce the price.”18
The court further concluded that “[t]he expiration of
the thirty day extension for a closing also constituted a
good cause basis to terminate the process.”19
Finally, the court addressed the defendants’ request
for declaratory relief. The court iterated that, pursu-
ant to the contracts, time was of the essence as to the
closing. The court continued: “Even if the court were in
error in this respect, the [contractual] language relating
to an obligation to correct defects in title is subject to a
reasonableness or good faith standard, and the plaintiffs
offered no credible evidence to counter the conclusion
that had been reached by [Barrett] that based on [his]
inquiries, it would be futile—with a substantial cost and
delay—even to try to obtain formal approval of [the] 23
Henry Street [property] as a legal three-family structure.
Absent a reasonable basis to challenge that conclusion,
the ‘obvious’ options were to accept the impracticality
of that as a solution, or pursue that unlikely to succeed
course of action, or leave everything in limbo, indefi-
nitely. [Barrett] reasonably relied on the expiration of
the authorized thirty day extension [of the closing date]
without any prospect for cure, leaving the options of the
plaintiffs accepting the [23 Henry Street] property with
the [title] defect or the contracts being terminated with
the [plaintiffs’] deposit returned. The plaintiffs’ refusal
18In addition, the court determined that there was no credible evidence
demonstrating that the plaintiffs made “any attempt to get discussions
back on track relating to curing the problem with [the] 23 Henry Street
[property] or making the election of remedy as set forth in [paragraph 6
(a) of] the contracts, after [Barrett] returned (tendered return) of the . . .
[plaintiffs’] deposit. In other words, even if [Barrett] overreacted, and
assuming that the plaintiffs actually did not want to terminate the
[contracts], the plaintiffs appear to have taken no steps (no documented
steps) to try to restore the relationship to one of cooperatively working
towards addressing the problem as to [the] 23 Henry Street [property];
no steps appear to have been taken to convince [Barrett] that [he] had
acted rashly.” (Emphasis omitted.)
19In addressing the plaintiffs’ breach of the implied covenant of good
faith and fair dealing claim, the court also rejected their assertion that
Barrett failed to provide them with material information that they had
requested following the execution of the contracts.

Angiolillo v. Nevard
to do what was needed—make an election—could not be
allowed [as] the status quo [would] persist indefinitely.
The refusal of the plaintiffs to make an election under
the contract[s], and their decision to commence litiga-
tion before the [extended January 16, 2019] deadline [for
the closing] had expired, are convincing evidence that
the plaintiffs were refusing to make an election (other
than insisting that the parties should close on [the] 19
Henry Street [property] and leave the status of [the] 23
Henry Street [property] open, indefinitely, contrary
to the intent of the parties . . . that, absent a default,
the properties were to be conveyed simultaneously).”
Accordingly, the court “declar[ed] that [Barrett] prop-
erly treated the plaintiffs’ refusal to make an election to
proceed with the purchase of both properties under one of
the two options available to them in the case of a defect in
title that cannot be cured despite reasonable good faith
efforts, and especially in the context of a lawsuit having
been started and with the contractual time for a closing
having expired, as an implied election of cancellation of
the [contracts].”20 This appeal followed. Additional facts
and procedural history will be set forth as necessary.21
The plaintiffs raise two principal claims on appeal.
First, the plaintiffs assert that the court misconstrued
the contracts (1) to establish January 16, 2019, as the
extended closing deadline following Barrett’s extension
of the original closing date and (2) to provide that time
was of the essence with respect to the closing. Second, the
plaintiffs contend that the court incorrectly determined
that Barrett properly treated their conduct as demon-
strating that they made an “implied” contractual election
20The court further determined that the plaintiffs were entitled to
a return of their deposit on both properties, without interest, as well
as to certain additional expenses associated with a termination of the
contracts.
21On June 6, 2024, the defendants filed a motion for attorney’s fees
and costs. On February 14, 2025, the court awarded the defendants
$44,440 in attorney’s fees. The plaintiffs appealed from the award of
attorney’s fees, which separate appeal has been stayed pending the final
disposition of this appeal. See Angiolillo v. Nevard, Connecticut Appel-
late Court, Docket No. 48673 (appeal filed March 4, 2025).

Angiolillo v. Nevard
to terminate the contracts. The plaintiffs maintain that
these errors are fatal to the court’s conclusions that the
defendants (1) did not breach the contracts, and that the
plaintiffs were not entitled to specific performance, (2)
did not breach the implied covenant of good faith and
fair dealing, and (3) were entitled to declaratory relief.22
We address these claims in turn.
I
We first turn to the plaintiffs’ claims that the trial
court improperly construed the contracts (1) to establish
January 16, 2019, as the extended closing deadline after
Barrett had extended the original closing date and (2) to
provide that time was of the essence vis-à-vis the closing.
We disagree with the plaintiffs’ first claim and, although
we agree with their second claim, we conclude that the
court’s error was not integral to its adjudication of the
plaintiffs’ claims or the defendants’ counterclaim.
“The law governing the construction of contracts is
well settled. When a party asserts a claim that chal-
lenges the trial court’s construction of a contract, we
must first ascertain whether the relevant language in
the agreement is ambiguous. . . . When the language of a
contract is ambiguous, the determination of the parties’
intent is a question of fact . . . . [When] there is definitive
contract language, [however] the determination of what
the parties intended by their contractual commitments
is a question of law. . . . It is implicit in this rule that
the determination as to whether contractual language is
plain and unambiguous is itself a question of law subject
to plenary review. . . .
“We accord the language employed in the contract a
rational construction based on its common, natural and
ordinary meaning and usage as applied to the subject mat-
ter of the contract. . . . Where the language is unambiguous,
22The plaintiffs have not appealed from the portion of the judgment
rendered in the defendants’ favor on the counts of their amended
complaint sounding in fraud, so-called “fraud by negligent misrepre-
sentation,” and a violation of the Connecticut Unfair Trade Practices
Act, General Statutes § 42-110a et seq. See footnote 10 of this opinion.

Angiolillo v. Nevard
we must give the contract effect according to its terms. . . .
Where the language is ambiguous, however, we must
construe those ambiguities against the drafter [some-
times referred to as the contra proferentem rule]. . . .
A contract is unambiguous when its language is clear and
conveys a definite and precise intent. . . . The court will
not torture words to impart ambiguity where ordinary
meaning leaves no room for ambiguity. . . . Moreover, the
mere fact that the parties advance different interpreta-
tions of the language in question does not necessitate a
conclusion that the language is ambiguous. . . . In con-
trast, a contract is ambiguous if the intent of the parties
is not clear and certain from the language of the contract
itself. . . . [A]ny ambiguity in a contract must emanate
from the language used by the parties. . . . The contract
must be viewed in its entirety, with each provision read
in light of the other provisions . . . and every provision
must be given effect if it is possible to do so. . . . If the
language of the contract is susceptible to more than one
reasonable interpretation, the contract is ambiguous.”
(Citations omitted; internal quotation marks omitted.)
C & H Shoreline, LLC v. Rubino, 203 Conn. App. 351,
356–57, 248 A.3d 77 (2021).
The following contractual provisions are relevant to
our resolution of the plaintiffs’ claims. Paragraph 4 of
the contracts provides in relevant part that the respec-
tive property deed “shall be delivered . . . on the 17th day
of December, 2018, at 2:00 P.M. or sooner by mutual
agreement of the parties . . . .”
Paragraph 6 (a) of the contracts provides in relevant
part: “If, upon the date for the delivery of the [respective
property] deed . . . [Barrett] shall be unable to deliver or
cause to be delivered a deed or deeds conveying a good
and marketable title to the [respective property], subject
only to the items set forth in Schedule A and [p]aragraph
[6 (e)] . . . then [Barrett] shall be allowed a reasonable
postponement of closing not to exceed thirty (30) calendar
days, or such shorter time as may be within the term of

Angiolillo v. Nevard
the [plaintiffs’] mortgage commitment, within which
to perfect title. . . .”
Paragraph 16 of the contracts provides in relevant
part: “In no event shall the closing, or any extension
thereof, take place later than twenty-one (21) calendar
days from the date of closing set forth in [p]aragraph 4 . . .
subject to the provisions of [p]aragraphs 6 and 11. . . .”
Attached to and incorporated into the contracts is a
seller’s rider. Paragraph 4 of the seller’s rider provides:
“Except for the closing date as set forth [in the respective
contract], as to all other dates, time shall be considered
of the essence.” Additionally, the prefatory language
of the seller’s rider provides in relevant part: “In the
event of any conflict between the terms of the [respective
contract] (or any other addenda and/or riders thereto)
and the terms of [the seller’s] [r]ider, the terms of [the
seller’s] [r]ider shall control . . . .”
A
The plaintiffs contend that the court misinterpreted
the contracts to set January 16, 2019, as the extended
closing deadline following Barrett’s extension of the
original closing date. We disagree.
In its decision, the court determined that, “[i]n terms
of timing . . . paragraph 16 [of the contracts] required
the closing to take place no later than twenty-one days
after December 17, 2018, except that paragraph 6 (a)
allowed a closing no later than January 16, 2019 (thirty
days thereafter).” Additionally, the court referred to
January 16, 2019, as the “outer limit date” and the “hard
deadline” for the closing, and stated that “the language
of the [contracts] provided only for a single up to thirty
day extension of the closing.”
The plaintiffs contend that, read together, paragraphs
4, 6 (a), and 16 of the contracts provide that, in the event
that Barrett exercised his option to extend the closing
under paragraph 6 (a), the deadline for the closing was
twenty-one days after January 16, 2019. As the plaintiffs

Angiolillo v. Nevard
explain: “[O]nce [Barrett] postpone[d] the closing date for
thirty days pursuant to paragraph 6 [(a)], the twenty-one
days under paragraph 16 ran from that extended closing
date. That is, once the December 17, 2018 closing pursu-
ant to paragraph 4 was extended by [Barrett] pursuant
to paragraph 6 [(a)] until January 16, 2019, paragraph
16 required the closing [to] occur twenty-one days after
the new closing date of January 16, 2019.” This conten-
tion is unavailing.
We conclude that the contracts, in clear and unambigu-
ous terms, establish January 16, 2019, as the extended
closing deadline. Pursuant to paragraph 16, the closing
was to occur no later than twenty-one days following
December 17, 2018 (or an earlier date had the parties
mutually agreed), “subject to the provisions of [p]ara-
graphs 6 and 11.” Paragraph 6 (a) authorizes Barrett
to extend the closing for a period “not to exceed thirty
(30) calendar days . . . .” Put simply, we interpret these
provisions to permit a maximum thirty day extension
of the original December 17, 2018 closing date, with
the twenty-one day extension language of paragraph 16
applying only in the event that the original closing date
was not extended under the provisions of paragraphs 6
or 11.23 Thus, we reject the plaintiffs’ proposition that
the parties had an additional twenty-one days following
January 16, 2019, to close on the properties.
B
The plaintiffs also contend that the court misconstrued
the contracts to provide that, with respect to the closing,
time was of the essence. We agree but conclude that the
court’s error was not integral to its adjudication of the
plaintiffs’ claims or the defendants’ counterclaim.
“When it is said that time is of the essence, the proper
meaning of the phrase is that the performance by one party
at the time specified in the contract or within the period
specified in the contract is essential in order to enable
23As we previously noted, the terms of paragraph 11 of the contracts
are not germane to this appeal. See footnote 5 of this opinion.

Angiolillo v. Nevard
him to require performance from the other party. . . .
Its commonly understood meaning is that insofar as a
time for performance is specified in the contract, failure
to comply with the time requirement will be considered
to be a material breach of the agreement.” (Internal
quotation marks omitted.) New Milford v. Standard
Demolition Services, Inc., 212 Conn. App. 30, 85 n.23,
274 A.3d 911, cert. denied, 345 Conn. 908, 283 A.3d 506
(2022). “In real estate contracts, the fact that a specific
time is fixed for payment or for conveyance does not
make time of the essence—at least, it does not make per-
formance at the specified time of the essence. . . . When
the parties to a real estate contract want to fix a specific
date for performance, we generally have required them
to express specifically in the contract that time is of the
essence; otherwise, performance within a reasonable time
will satisfy the contract.” (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Tulisano v.
Schonberger, 74 Conn. App. 101, 105–106, 810 A.2d 806
(2002); see also Lipshie v. George M. Taylor & Son, Inc.,
265 Conn. 173, 182 n.7, 828 A.2d 110 (2003) (“[u]nless
a contract for the purchase of real estate provides that
time is of the essence, a failure to meet a closing date does
not automatically establish a breach; the law provides
that the parties must close within a reasonable time of
the closing date”); United Cleaning & Restoration, LLC
v. Koskerides, 234 Conn. App. 401, 420–21, 343 A.3d
830 (2025) (“Where the agreement does not specifically
state that time is of the essence, it is presumed not to be
unless the parties have expressed a contrary intent. . . .
The fact that a contract states a date for performance
does not necessarily make time of the essence.” (Internal
quotation marks omitted.)).
The following additional procedural history is relevant
to our resolution of this claim. In their posttrial brief,
the plaintiffs argued that, on January 16, 2019, “[Bar-
rett] wrongfully unilaterally terminated the [contracts],
claiming ‘defect of title.’ The parties were in the midst
of communicating, however strained and in writing,
back and forth as they attempted to resolve the issue of

Angiolillo v. Nevard
whether [the] 23 Henry Street [property] was a three-
family or two-family [dwelling]. Nothing prevented the
parties, once they agreed, to close title on both or either
of the properties. . . . Before the parties could reach
an agreement or an amendment, [Barrett] unilaterally
ended the discussions and terminated the [contracts].”
The plaintiffs further contended that the closing date
was not subject to a “time is of the essence” provision.
In its decision, the court acknowledged that the plain-
tiffs were asserting that the contracts did not contain a
“time is of the essence” provision vis-à-vis the closing,
“such that a further (indefinite?) extension of time for
a closing would not conflict with the intent of the . . .
[contracts].” The court stated that “there does not appear
to be explicit use of the term ‘time is of the essence’ or a
variation on those words [in the contracts]”; nevertheless,
the court reasoned that, pursuant to paragraph 16, “time
is, in substance, stated to be of the essence, in that a hard
deadline is established [for the closing] . . . .” (Emphasis
omitted.) The court continued: “In terms of timing . . .
paragraph 16 required the closing to take place no later
than twenty-one days after December 17, 2018, except
that paragraph 6 (a) allowed a closing no later than Janu-
ary 16, 2019 (thirty days thereafter). Presumably, the
parties could have agreed to waive these limits, but any
suggestion that the [contracts] did not provide for a time
is of the essence approach to a closing is in direct conflict
with the language of the [contracts] . . . . The parties did
not contemplate an open-ended approach to closing on
the properties . . . .” (Footnote omitted.)
The plaintiffs assert that the court’s determination
that time was of the essence as to the closing is unten-
able in light of the terms of the seller’s rider, which the
court did not consider as part of its analysis. We agree.24
24In their appellate brief, the defendants contend that the court
correctly construed the contracts in concluding that time was of the
essence vis-à-vis the closing; however, beyond reciting the provision
of the seller’s rider on which the plaintiffs rely, the defendants do not
provide any analysis of that provision.

Angiolillo v. Nevard
In its decision, after stating that the contracts did
not appear to contain express “time is of the essence”
language, the court relied on paragraphs 6 (a) and 16 of
the contracts to conclude that time was of the essence as
to the closing. In so concluding, however, the court did
not examine or make any reference to the seller’s rider,
which, by its express terms, takes precedence over con-
flicting language located elsewhere in the contracts.25
The seller’s rider provides in relevant part that, “[e]xcept
for the closing date as set forth [in each respective con-
tract], as to all other dates, time shall be considered of
the essence.” Stated otherwise, in contrast to all other
dates identified in the contracts, time was not of the
essence with respect to the closing. Accordingly, in light
of the clear and unambiguous language of the control-
ling seller’s rider, we conclude that the court improperly
interpreted the contracts to provide that time was of the
essence as to the closing.
We now address the consequences of the court’s
improper determination that, pursuant to the contracts,
time was of the essence as to the closing. The plaintiffs
argue that this error, alone, warrants reversal of the
court’s judgment against them. Reviewing the entirety
of the court’s decision, however, we do not agree that
this error unravels its conclusions that (1) the plaintiffs
failed to prove their claims of breach of contract and
breach of the implied covenant of good faith and fair
dealing, and that they were not entitled to specific per-
formance, and (2) the defendants were entitled to declara-
tory relief. Moreover, as we conclude in part II B of this
opinion, there was an adequate factual basis supporting
the court’s determination that Barrett reasonably deter-
mined that the plaintiffs made an “implied” election to
terminate the contracts regardless of whether time was
of the essence with respect to the closing. Accordingly,
we reject the plaintiffs’ argument.
25We note that the plaintiffs did not direct the trial court’s attention
to the provision of the seller’s rider at issue during trial or in their
posttrial brief.

Angiolillo v. Nevard
II
Having concluded in part I of this opinion that the trial
court (1) properly construed the contracts to establish
January 16, 2019, as the deadline for the closing fol-
lowing Barrett’s extension of the original closing date
but (2) improperly construed the contracts to provide
that time was of the essence as to the closing, we turn
to the plaintiffs’ second claim. The plaintiffs assert that
the court incorrectly determined that Barrett properly
treated their conduct as demonstrating an “implied elec-
tion of cancellation of the [contracts]” under paragraph
6 (a), whereupon, by way of the January 16, 2019 letter,
Barrett deemed the contracts to be terminated. The
plaintiffs maintain that there was neither a contractual
nor a factual basis to support that determination, such
that the court committed error in “justif[ying] [Bar-
rett’s] unilateral termination of the contracts” and the
resulting breach thereof. We disagree.26
“[T]he scope of our appellate review depends upon the
proper characterization of the rulings made by the trial
court. To the extent that the trial court has made find-
ings of fact, our review is limited to deciding whether
such findings were clearly erroneous. When, however,
the trial court draws conclusions of law, our review is
plenary and we must decide whether its conclusions are
legally and logically correct and find support in the facts
that appear in the record.” (Internal quotation marks
omitted.) Walters v. Servidio, 227 Conn. App. 1, 29,
320 A.3d 1008 (2024).
A
We first turn to the plaintiffs’ assertion that there
was no contractual basis to determine that they made an
“implied” election to terminate the contracts. The plain-
tiffs maintain that paragraph 6 (a) of the contracts gave
26The plaintiffs also challenge the court’s damages analysis. See
footnote 16 of this opinion. Because we conclude that the court prop-
erly determined that the defendants did not breach the contracts or the
implied covenant of good faith and fair dealing, we need not address
their claim as to damages.

Angiolillo v. Nevard
them the exclusive authority to decide how to proceed
in the event that Barrett could not cure the title defect
vis-à-vis the 23 Henry Street property and that Barrett
had no right to deem the contracts to be terminated. We
reject this claim.
Pursuant to the clear and unambiguous language of
paragraph 6 (a) of the contracts, if Barrett could not
produce a good and marketable title to the respective
property after electing to extend the original closing
date, then the plaintiffs had the option either to “(i) . . .
elect to accept such title as [Barrett] can convey, without
modification of the purchase price, or (ii) . . . reject such
title” and cancel the contracts. The contracts, however,
do not designate any particular method by which the
plaintiffs must make an election under paragraph 6
(a). Moreover, we discern nothing in the contracts that
prohibits a determination that, through their conduct,
the plaintiffs made an implicit election to cancel the
contracts. Thus, the plaintiffs’ claim fails.
B
We next address the plaintiffs’ assertion that there was
no factual basis supporting the determination that they
made an “implied” election to terminate the contracts.
In particular, they assert that neither (1) the commence-
ment of the present action on January 15, 2019, nor (2)
the passage of the extended closing deadline on January
16, 2019, supported that determination.27 We are not
persuaded.
We first consider the plaintiffs’ commencement of the
present action on January 15, 2019. Viewed in the proper
context, the plaintiffs commenced the present action
after (1) Barrett had made good faith efforts to cure the
title defect vis-à-vis the 23 Henry Street property or to
salvage the sale of both properties, which efforts either
27Additionally, in their principal appellate brief, the plaintiffs cite to
testimony elicited from Glenn during trial that he was away on vacation
in Antarctica from January 7 to 18, 2019, such that he was unaware of
the January 7, 2019 letter until he returned. The court did not make
any findings to that effect.

Angiolillo v. Nevard
the plaintiffs rejected or Barrett reasonably deemed
to be futile, and (2) Attorney Kristoff had emailed the
January 7, 2019 letter to Glenn, representing that the
title defect could not be cured and proposing a final offer
to facilitate the sale of both properties. It was reason-
able, as the court found, for Barrett to have treated
the plaintiffs’ commencement of the present action as
being indicative of a rejection of the offer proposed in
the January 7, 2019 letter, as well as the purchase of
both properties with the title defect in place. Addition-
ally, as the court aptly observed, the plaintiffs’ origi-
nal complaint sought specific performance as to the 19
Henry Street property only, and it was not until they
filed their amended complaint in July 2023 that they
sought specific performance as to both properties. See
footnotes 11 and 14 of this opinion. In other words, on
the basis of their original complaint, the plaintiffs were
not seeking to proceed with the purchase of both proper-
ties in light of the title defect when they commenced the
present action. Thus, we reject the plaintiffs’ contention
that their commencement of the present action did not
support the determination that they made an “implied”
election to terminate the contracts.
We next address the passage of the extended closing
deadline on January 16, 2019. The plaintiffs maintain
that (1) the extended closing deadline had not yet expired
when Barrett deemed the contracts to be terminated on
January 16, 2019, and, in any event, (2) time was not of
the essence as to the closing, such that the passage of the
extended closing deadline could not serve to demonstrate
that they implicitly elected to cancel the contracts. As
the court reasonably determined, however, the plaintiffs
did not express any willingness to accept the defective
title to the 23 Henry Street property until they amended
their complaint in the present action in 2023, with their
conduct—particularly the commencement of the present
action on January 15, 2019, which followed the trans-
mission of the January 7, 2019 letter—demonstrating
a rejection of such title before the January 16, 2019
letter had been sent. Thus, it was reasonable for Barrett

Angiolillo v. Nevard
to deem the contracts to be terminated on the extended
closing deadline, regardless of whether the January 16,
2019 letter was sent on that date or time was not of the
essence as to the closing. Accordingly, the plaintiffs’
contention concerning the passage of the extended clos-
ing deadline fails.
Considering the court’s factual findings in their
entirety, we conclude that there was an adequate factual
basis supporting the court’s determination that Barrett
properly treated the plaintiffs’ conduct as reflecting an
“implied election of cancellation of the [contracts].”28
The judgment is affirmed.
In this opinion the other judges concurred.
28In distinct sections at the end of their principal appellate brief, the
plaintiffs raise additional issues concerning the court’s rejections of
their request for specific performance and their breach of the implied
covenant of good faith and fair dealing claim. Insofar as our analyses in
parts I and II of this opinion do not wholly dispose of those additional
issues, we conclude that they have no merit.