Rustum v Pinto

Rustum v Pinto 2011 NY Slip Op 08297 Decided on November 17, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 17, 2011
Mazzarelli, J.P., Sweeny, Moskowitz, Acosta, Abdus-Salaam, JJ.
6085 113020/10

[*1]John Rustum, et al., Plaintiffs-Respondents,

v

Camila A. Pinto, Defendant-Appellant, Jerry Dickstein, etc., Defendant.




Agovino & Asselta, LLP, Mineola (Robert C. Buff of counsel),
for appellant.
Baker, Leshko, Saline & Blosser, LLP, White Plains (Mitchell
J. Baker of counsel), for respondents.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered March 3, 2011, which, in this action for breach of contract arising out of the sale of a cooperative apartment unit, granted plaintiffs' motion for summary judgment directing defendant escrow agent to return their $290,000 down payment, and denied the cross motion of defendant apartment owner Camila Pinto for summary judgment seeking to retain the contract deposit, unanimously affirmed, with costs.

The court properly granted plaintiffs' motion, because, in giving effect to the plain meaning of the unambiguous contract language (see Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]), it found that plaintiffs were unsuccessful in obtaining a "Loan Commitment Letter," within the meaning of the parties' contract of sale. Plaintiffs properly cancelled the contract, since paragraph 18.3.1.3 authorized them to cancel the contract if a Loan Commitment Letter contained unmet conditions not concerning plaintiffs. Here, the commitment letter was conditional upon two requirements that were within the control of the lender (see Zellner v Tarnell, 65 AD3d 1335 [2009]; Kapur v Stiefel, 264 AD2d 602, 603 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2011

CLERK