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WALTON MANAGEMENT, LLC v. WALTON APARTMENTS, LLC

298 A.D.2d 277 (2002)

748 N.Y.S.2d 737

WALTON MANAGEMENT, LLC, et al., Respondents, v. WALTON APARTMENTS, LLC, Appellant.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided October 24, 2002.

The documentary evidence does not "utterly refute" plaintiffs' allegations and conclusively establish defendant's claim that plaintiffs canceled the contract (see Goshen v Mutual Life Ins. Co., 98 N.Y.2d 314, 326). It is undisputed that upon execution of the contract on December 4, 2000, plaintiffs tendered a check for $75,000 as down payment on the contract price; that as of December 6, 2000, defendant's attorney had not deposited...

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