In early 1994 defendants Brian J. O'Connor and Cindy A. O'Connor (hereinafter collectively referred to as defendants) executed a contract of sale for plaintiffs' purchase of real property located in the Town of Olive, Ulster County. The agreed-upon
Thereafter, by letter dated March 4, 1994, plaintiffs' attorney notified defendants' attorney, defendant John J. Darwak, that plaintiffs were unable to secure a mortgage commitment and that plaintiffs elected to terminate the contract. In response, Darwak requested documentation from plaintiffs' attorney to confirm that plaintiffs' mortgage application had been rejected. Upon being informed that such documentation would not be forwarded, Darwak notified plaintiffs' attorney that a law date was set for April 15, 1994; plaintiffs did not appear. On or about April 14, 1994, plaintiffs commenced this action against defendants and Darwak for breach of contract. By order to show cause dated April 15, 1994, plaintiffs requested, inter alia, that Darwak disburse the down payment to them. Defendants and Darwak separately cross-moved for summary judgment dismissing the complaint; Supreme Court granted their cross motions for summary judgment and dismissed the complaint. Plaintiffs appeal.
We affirm. In the case at bar the mortgage contingency clause contained in the rider is devoid of any provision allowing plaintiffs to terminate the agreement upon failure to secure a mortgage commitment; termination was solely within the
It is settled law that to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial (Zuckerman v City of New York, 49 N.Y.2d 557, 562; see, CPLR 3212 [b]). The opposing party must then produce evidence in admissible form sufficient to require a trial (Zuckerman v City of New York, supra, at 562); mere conclusions are insufficient (supra, at 562). In the instant matter defendants' motion papers, consisting of their sworn statements as well as sworn statements by Darwak and a real estate salesperson who was involved in the sale, were sufficient to create entitlement to summary judgment, thereby shifting the burden to plaintiffs. In response, plaintiffs' submissions contain conclusory allegations concerning their efforts and their inability to obtain a mortgage; significantly, the record is devoid of any documentation from a lending institution or private lender indicating that plaintiffs' application had been made and rejected. All relevant information regarding plaintiffs' efforts was within their control; however, their response fails to factually establish the existence of any triable issues. Under such circumstances, we conclude that Supreme Court properly granted the cross motions for summary judgment dismissing the complaint.
Plaintiffs also contend that Supreme Court erred by awarding defendants the entire down payment, which is nearly 23% of the purchase price. We disagree. "[A] purchaser who defaults on a real estate contract without lawful excuse cannot recover the down payment" (Korabel v Natoli, 210 A.D.2d 620, 621-622, appeal dismissed, lv denied 85 N.Y.2d 889; see, Maxton Bldrs. v Lo Galbo, 68 N.Y.2d 373, 378; Lawrence v Miller, 86 N.Y. 131, 140). Although the results of the application of this doctrine to the facts in this case may seem severe, the parties to this transaction
We have reviewed plaintiffs' remaining contentions and find them to be without merit.
Ordered that the order is affirmed, with costs.