BALKHIYEV v. SANDERS

2008-08159

71 A.D.3d 611 (2010)

896 N.Y.S.2d 147

MAREM BALKHIYEV et al., Respondents, v. JUDITH SANDERS, Appellant, et al., Defendant.

Appellate Division of the Supreme Court of New York, Second Department.

Decided March 2, 2010.


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's attorney, the defendant Milton D. Ottensoser, as escrowee. The contract was contingent on the plaintiffs obtaining a new first mortgage for not more than the sum of $580,000 at prevailing interest rates and for a duration of no less than 15 years. The plaintiffs agreed to "immediately apply for such mortgage and truthfully supply all personal information required." The contract provided that "[i]n the event that the [plaintiffs] are unable to secure a mortgage commitment after diligent effort, as herein specified, they may cancel this contract." The plaintiffs' application for 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 to income." The plaintiffs notified Sanders that their mortgage application had been denied and they requested the return of their down payment. Sanders instructed Ottensoser not to return the down payment. Thereafter, the plaintiffs commenced this action to recover the down payment.

Sanders moved, in effect, for summary judgment dismissing the complaint insofar as asserted 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 did not 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 (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). Contrary to her contention, triable issues of fact exist as to whether the plaintiffs acted in good faith to secure mortgage financing (see Garber v Giordano, 16 A.D.3d 454 [2005]; Kapur v Stiefel, 264 A.D.2d 602 [1999]; Katz v Simon, 216 A.D.2d 270 [1995]; Zwirn v Goodman, 206 A.D.2d 360 [1994]; Blask v Miller, 186 A.D.2d 958 [1992]; BTS, Inc. v Webny Corp., 157 A.D.2d 638 [1990]; Wilson v City of Long Beach, 133 A.D.2d 684 [1987]). Accordingly, the Supreme Court properly denied Sanders's motion, in effect, for summary judgment dismissing the complaint insofar as asserted against her and for summary judgment on her counterclaim to retain the down payment.

Sanders's remaining contention is without merit.


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