| Balkhiyev v Sanders |
| 2010 NY Slip Op 01749 [71 AD3d 611] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Marem Balkhiyev et al., Respondents, v Judith Sanders,Appellant, et al., Defendant. |
—[*1] Sadatu O. Salami-Oyakhilome, Jamaica, N.Y. (Steven Alexander Biolsi of counsel), forrespondents.
In an action to recover a down payment made pursuant to a contract for the purchase of realproperty, the defendant Judith Sanders appeals, as limited by her brief, from so much of an orderof the Supreme Court, Queens County (McDonald, J.), dated June 6, 2008, as denied her motion,in effect, for summary judgment dismissing the complaint insofar as asserted against her and forsummary judgment on her counterclaim to retain the down payment.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Judith Sanders entered into a contract to sell her home to the plaintiffs.Pursuant to the contract, the plaintiffs paid a down payment in the sum of $62,500 to Sanders'sattorney, the defendant Milton D. Ottensoser, as escrowee. The contract was contingent on theplaintiffs obtaining a new first mortgage for not more than the sum of $580,000 at prevailinginterest rates and for a duration of no less than 15 years. The plaintiffs agreed to "immediatelyapply for such mortgage and truthfully supply all personal information required." The contractprovided that "[i]n the event that the [plaintiffs] are unable to secure a mortgage commitmentafter diligent effort, as herein specified, they may cancel this contract." The plaintiffs' applicationfor a mortgage was denied. The reasons given for the denial were "[u]nable to verify income,""[i]ncome insufficient for amount of credit requested," and "[e]xcessive obligations in relation toincome." The plaintiffs notified Sanders that their mortgage application had been denied andthey requested the return of their down payment. Sanders instructed Ottensoser not to return thedown payment. Thereafter, the plaintiffs commenced this action to recover the down payment.
Sanders moved, in effect, for summary judgment dismissing the complaint insofar asasserted against her and for summary judgment on her counterclaim to retain the down payment.The Supreme Court, inter alia, denied the motion. Sanders appeals, arguing that the plaintiffs didnot act in good faith to secure mortgage financing. We affirm the order insofar as appealed from.
Sanders failed to establish her prima facie entitlement to judgment as a matter of law (seeAlvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49NY2d 557 [1980]). [*2]Contrary to her contention, triable issuesof fact exist as to whether the plaintiffs acted in good faith to secure mortgage financing (see Garber v Giordano, 16 AD3d454 [2005]; Kapur v Stiefel, 264 AD2d 602 [1999]; Katz v Simon, 216AD2d 270 [1995]; Zwirn v Goodman, 206 AD2d 360 [1994]; Blask v Miller,186 AD2d 958 [1992]; BTS, Inc. v Webny Corp., 157 AD2d 638 [1990]; Wilson vCity of Long Beach, 133 AD2d 684 [1987]). Accordingly, the Supreme Court properlydenied Sanders's motion, in effect, for summary judgment dismissing the complaint insofar asasserted against her and for summary judgment on her counterclaim to retain the down payment.
Sanders's remaining contention is without merit. Covello, J.P., Miller, Dickerson and Belen,JJ., concur.