Carmona v McKiernan

Carmona v McKiernan 2009 NY Slip Op 07370 [66 AD3d 729] October 13, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Enrique Carmona et al., Respondents,
v
Geraldine McKiernan, Appellant.

—[*1] Abbate & Nohavicka, LLP, White Plains, N.Y. (Richard S. Abbate of counsel), for appellant.

Camille T. Allen, White Plains, N.Y., for respondents.

In an action, inter alia, to recover a down payment given pursuant to a contract for the sale of real property, the defendant appeals from an order of the Supreme Court, Westchester County (Loehr, J.), entered November 13, 2008, which granted the plaintiffs' motion for summary judgment on the first cause of action to recover the down payment and accrued interest thereon, and denied her cross motion, in effect, for summary judgment dismissing the complaint and for summary judgment on her counterclaim to retain the down payment.

Ordered that the order is affirmed, with costs.

The plaintiffs demonstrated their entitlement to judgment as a matter of law by establishing, inter alia, that they acted in good faith and that their mortgage commitment was revoked through no fault of their own (see Byrne v Collins, 142 AD2d 661, 661-662 [1988]; Bobrowsky v Landes, 124 AD2d 618, 619 [1986]; see also Lane v Elwood Estates, 31 AD2d 949, 950 [1969], affd 28 NY2d 620 [1971]). In opposition, the defendant failed to raise a triable issue of fact (cf. Katz v Simon, 216 AD2d 270, 271 [1995]). Accordingly, the Supreme Court properly granted the plaintiffs' motion for summary judgment.

The defendant's remaining contentions are without merit. Rivera, J.P., Florio, Eng and Leventhal, JJ., concur.