Rice v. Buie

• Decision Date: 18 March 1999
• Citation: 687 N.Y.S.2d 52
• Parties: 1999 N.Y. Slip Op. 2344 J. Donald RICE, Jr., et al., Plaintiffs-Appellants, v. Ralph M. BUIE, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 52

687 N.Y.S.2d 52

1999 N.Y. Slip Op. 2344

J. Donald RICE, Jr., et al., Plaintiffs-Appellants, v. Ralph M. BUIE, et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

March 18, 1999.

Lori Douglass Davis, for Plaintiffs-Appellants.

Steven G. Sonet, for Defendants-Respondents.

SULLIVAN, J.P., LERNER, ANDRIAS and SAXE, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Richard Braun, J.), entered on or about February 10, 1998, which, in an action for specific performance of a contract for the sale of real estate, or, in the alternative, return of the down payment given pursuant to such contract, inter alia, granted defendants' motion for summary judgment dismissing the complaint and for summary judgment on their counterclaims for retention of the down payment, unanimously affirmed, without costs.

We affirm the determination that defendants are entitled to retain plaintiffs' down payment of $78,000, albeit not for the IAS court's reason that plaintiffs had defaulted in responding to defendants' counterclaims for such relief. Plaintiffs applied for a mortgage of $990,000, far in excess of both the purchase price of $780,000 and the "first mortgage loan ... of $600,000.00 or such lesser amount as Purchaser shall be willing to accept" called for in the contract's mortgage contingency clause. The lender declined plaintiffs' application for a loan of $990,000, but offered them one for $700,000 subject to the conditions that $200,000 of the $700,000 be withheld at closing and deposited in escrow for disbursement upon plaintiffs' completing $400,000 of renovation work and obtaining a new certificate of occupancy, and an appraisal of the property of not less than $1,300,000. While it is true, as plaintiffs contend, that this commitment effectively provided them with only $500,000 for use toward the purchase price at closing, it remains that the $500,000/$200,000 split in the form of the commitment reflected the application that plaintiffs submitted, which represented that $380,000 was needed for alterations, improvements and repairs of the property. Thus, the amount and type of commitment was the result not of an appraisal lower than what would have supported the $600,000 amount stipulated in the contract, but rather of an application that sought what amounted to a combination purchase money and construction loan. Since nothing in the contract permitted such an application, it constituted a breach thereof...