Jangana v Cogan

Jangana v Cogan 2010 NY Slip Op 06694 [76 AD3d 907] September 23, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 27, 2010

Joseph Jangana et al., Respondents,
v
Arline Cogan, Appellant.

—[*1] Edward I. Yatkowsky, White Plains, for appellant.

Smith & Shapiro, New York (Harry Shapiro of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Debra A. James, J.), entered July 30, 2009, which, inter alia, granted plaintiffs' motion for summary judgment declaring that defendant breached the subject contract and that plaintiffs are entitled to the return of their contract deposit and dismissing defendant's affirmative defenses and counterclaims, and ordered defendant's counsel to release to plaintiffs' counsel the entire deposit under the contract in the sum of $220,000, together with all interest accrued thereon to date, unanimously affirmed, with costs.

The terms of the contract provide that in the event the cooperative board (Board) refused to provide its unconditional consent to the sale of defendant's apartment to plaintiffs, plaintiffs were entitled to the return of their escrowed down payment, unless the Board's refusal was due to plaintiffs' bad faith.

Here, following plaintiffs' prima facie showing of entitlement to judgment as a matter of law, defendant failed to raise a triable issue of fact as to whether plaintiffs had, in bad faith, submitted data to the Board containing misrepresentations or falsehoods, and whether, as a result of such bad faith submissions, the Board refused to consent to the sale of the apartment (see Alter v Levine, 57 AD3d 923 [2008]; cf. Mounessa v Promenade Holding Corp., 74 AD3d 1296 [2010]).

Defendant further failed to raise a question of fact as to plaintiffs' alleged bad faith in refusing to consent to the Board's request to reduce their financing, where the record does not show either that plaintiffs received such a request from the Board or that the Board refused to consent to the sale of the apartment on that basis (see Alter, 57 AD3d at 924). In any event, plaintiffs were not obligated to reduce their financing under the contract (see Albert & Kimmel v Herman, 276 AD2d 413 [2000]).

We have considered defendant's remaining arguments, including that further discovery is warranted, and find them unavailing. Concur—Saxe, J.P., Friedman, Moskowitz, Freedman and RomÁn, JJ.