HSIEH v. PRAVDER

2012-06689.

106 A.D.3d 694 (2013)

964 N.Y.S.2d 243

2013 NY Slip Op 3062

HSIEN D. HSIEH et al., Appellants, v. ANDREW PRAVDER, as Executor of RUTH PRAVDER, Deceased, et al., Respondents.

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

Decided May 1, 2013.


Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Andrew Pravder, as executor of the estate of Ruth Pravder, which was for summary judgment dismissing the complaint insofar as asserted against him, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiffs, as purchasers, and the defendant Andrew Pravder, as executor of the estate of Ruth Pravder (hereinafter Pravder), as seller, entered into a contract for the sale of real property. The plaintiffs made a down payment in the sum of $97,250 to Pravder's attorney, the defendant Donald J. Kavanagh, Jr. The contract was contingent on the plaintiffs' ability to obtain a written mortgage commitment, and required, inter alia, that the plaintiffs "pursue such application with diligence." The application of the plaintiff Hsien D. Hsieh for a mortgage loan was denied. The basis given by the bank for the denial was "insufficient cash."

The plaintiffs notified Kavanagh that their mortgage application had been denied and requested the return of their down payment. However, Pravder instructed Kavanagh not to return the down payment on the ground that the plaintiffs had not acted in good faith in pursuing the mortgage commitment. Subsequently, the plaintiffs commenced this action to recover the down payment. In the order appealed from, the Supreme Court, inter alia, granted that branch of Pravder's motion which was for summary judgment dismissing the complaint insofar as asserted against him, and denied the plaintiffs' cross motion for summary judgment on the complaint.

Contrary to the Supreme Court's determination, Pravder failed to establish his prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Triable issues of fact exist as to whether the plaintiffs made a diligent, good-faith effort to secure mortgage financing (see Maor v Seamon, 79 A.D.3d 1105 [2010]; Samson v Sapphire Capital, Inc., 74 A.D.3d 1172, 1173 [2010]; Balkhiyev v Sanders, 71 A.D.3d 611, 612 [2010]; Big Apple Meat Mkt. v Frankel, 276 A.D.2d 657, 659 [2000]; Blask v Miller, 186 A.D.2d 958, 959-960 [1992]; BTS, Inc. v Webny Corp., 157 A.D.2d 638, 639 [1990]).

The plaintiffs' remaining contention is without merit.

Accordingly, the Supreme Court should have denied that branch of Pravder's motion which was for summary judgment dismissing the complaint insofar as asserted against him and, for the same reasons, the plaintiffs' cross motion for summary judgment on the complaint was properly denied.


Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases