        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

713
CA 10-02401
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ.


DANIEL B. LANDIS AND JANELLA A. LANDIS,
PLAINTIFFS-APPELLANTS,

                    V                                MEMORANDUM AND ORDER

RICHARD GIACINTO, SHULTS & SHULTS ATTORNEYS,
AND DAVID A. SHULTS, ESQ., DEFENDANTS-RESPONDENTS.


EDWARD J. DEGNAN, CANISTEO, FOR PLAINTIFFS-APPELLANTS.

SHULTS AND SHULTS, HORNELL (DAVID A. SHULTS OF COUNSEL),
DEFENDANTS-RESPONDENTS PRO SE, AND FOR DEFENDANT-RESPONDENT RICHARD
GIACINTO.


     Appeal from an order of the Supreme Court, Steuben County (Joseph
D. Valentino, J.), entered February 18, 2010. The order granted the
motion of defendants for summary judgment dismissing the complaint and
denied the cross motion of plaintiffs for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying defendants’ motion and
reinstating the complaint and as modified the order is affirmed
without costs.

     Memorandum: Plaintiffs commenced this action seeking, inter
alia, to recover the down payment held in escrow that was paid by
defendant Richard Giacinto when he entered into a contract to purchase
real estate from plaintiffs. We agree with plaintiffs that Supreme
Court erred in granting defendants’ motion for summary judgment
dismissing the complaint, and we therefore modify the order
accordingly. A seller in a real estate transaction may be entitled to
keep a down payment where a buyer willfully defaults on the contract
(see Lawrence v Miller, 86 NY 131, 139-140; see also Maxton Bldrs. v
Lo Galbo, 68 NY2d 373, 378). Here, the contract contained a mortgage
contingency clause, and we conclude that there is a triable issue of
fact whether Giacinto engaged in good faith efforts to obtain a
mortgage (see Balkhiyev v Sanders, 71 AD3d 611, 612-613; Katz v Simon,
216 AD2d 270, 271-272; Zwirn v Goodman, 206 AD2d 360, 361-362).

     We further conclude, however, that the court properly denied
plaintiffs’ cross motion for, inter alia, summary judgment on the
third cause of action, alleging that plaintiffs are entitled to retain
the down payment held in escrow, inasmuch as there are triable issues
of fact with respect to Giacinto’s breach of the real estate contract
                                 -2-                           713
                                                         CA 10-02401

(see generally Zuckerman v City of New York, 49 NY2d 557, 562). We
reject plaintiffs’ contention that the evidence submitted regarding an
alleged mortgage commitment from IndyMac Bank establishes that
Giacinto breached the contract as a matter of law. We reject
plaintiffs’ further contention that Giacinto breached the contract by
providing late notice of his inability to secure financing. The
contract did not specify a date by which Giacinto was required to
provide such notice, and he therefore was afforded a reasonable time
to do so (see Big Apple Meat Mkt. v Frankel, 276 AD2d 657, 658).




Entered:   July 8, 2011                         Patricia L. Morgan
                                                Clerk of the Court
