In Hegner v. Reed (2 AD3d 683 [2nd Dept 2003]) the buyers failed to appear at a "time of the essence" closing and later brought an action for the return of their deposit. The buyers argued that, because the premises were not in a "broom clean" or vacant condition on the closing day, as required by the contract, they were excused from performance of the contract. The motion court ruled that the sellers were entitled to retain only a portion of the deposit, even though the contract provided that if the buyers were in default, the sellers were entitled to keep the entire deposit. Id. at 684. The Appellate Court reversed, and held that the sellers were entitled to keep the entire deposit as liquidated damages. The Appellate Court observed that the sellers could treat the buyers as having anticipatorily breached the contract. Id. at 684-85. In particular, the Appellate Court held that: Moreover, even assuming that the sellers were in breach of the contract on the day of the closing because the premises were not vacant, this alleged defect was curable within a reasonable time and thus the buyers were obligated to tender performance and permit the sellers the opportunity to cure ... The buyers' failure to do so bars them from recovering their deposit ... .Id. at 685.