| Astrada v Archer |
| 2008 NY Slip Op 04819 [51 AD3d 954] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Faith Astrada, Respondent, v Hulbert Archer, Defendant,and Regina Felton, Appellant. |
—[*1] James T. Gerardi, East Northport, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of a contract for the sale of realproperty, the defendant Regina Felton appeals, as limited by her brief, from (1) so much of anorder of the Supreme Court, Kings County (Schack, J.), dated December 21, 2006, as grantedthat branch of the plaintiff's motion which was for summary judgment on the cause of actionalleging breach of contract and directed her to return the plaintiff's down payment and paystatutory interest to the plaintiff within 10 days after the notice of entry of the order was servedupon her, and (2) so much of an order of the same court dated February 14, 2007, as, upon herfailure to comply with the order dated December 21, 2006, sua sponte, directed her to return theplaintiff's down payment and pay statutory interest to the plaintiff within 14 days after the noticeof entry of the order was served upon her or face a finding of civil contempt.
Ordered that on the Court's own motion, the notice of appeal from so much of the order datedFebruary 14, 2007, as, sua sponte, directed the defendant Regina Felton to return the plaintiff'sdown payment and pay the plaintiff statutory interest within 14 days after the notice of entry ofthe order was served upon her or face a finding of civil contempt is treated as an application forleave to appeal, and leave to appeal from that portion of the order is granted (see CPLR5701 [c]); and it is further,
Ordered that the orders are affirmed insofar as appealed from; and it is further,[*2]
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court properly granted that branch of the plaintiff's motion which was forsummary judgment on the breach of contract cause of action and properly directed the defendantRegina Felton (hereinafter the defendant), to return the plaintiff's down payment. Where, as here,a contract for the sale of real property contains a mortgage contingency clause, "[a]s long aspurchasers exert a genuine effort to secure mortgage financing and act in good faith, they areentitled to recover their down payment if the mortgage is not in fact approved through no fault oftheir own" (Sciales v Foulke, 217 AD2d 693, 694 [1995]; see Garber v Giordano, 16 AD3d454, 455 [2005]). The plaintiff made a prima facie showing that, despite her good-faithefforts and through no fault of her own, she was unable to obtain a "firm" mortgage commitmentin accordance with the mortgage contingency clause (Miranda v Jay Constr. Corp., 2 AD3d 420 [2003]). In opposition,the defendant failed to raise a triable issue of fact (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
The Supreme Court properly awarded the plaintiff statutory interest on her down payment(see CPLR 5001 [a]; Nikolis v Reznick, 214 AD2d 658, 659 [1995]; Partrickv Guarniere, 204 AD2d 702, 704 [1994]). Under the circumstances of this case, thedefendant's contention that she could not be held liable for payment of such interest is withoutmerit.
The defendant's remaining contentions are based on matter dehors the record and notproperly before us. Santucci, J.P., Covello, Belen and Chambers, JJ., concur. [See 14Misc 3d 1206(A), 2006 NY Slip Op 52432(U).]