Fiore Development Corp. v. Villa Gaudio, Inc. , 599 N.Y.S.2d 77 ( 1993 )

—In an action to recover the down payment made pursuant to a written contract for the sale of certain real estate, the defendants appeal from an order of the Supreme Court, Queens County (Lane, J.), dated May 20, 1991, which granted the plaintiffs motion for summary judgment and dismissed their counterclaims.

Ordered that the order is affirmed, with costs.

The plaintiff prospective purchaser seeks to recover the down payment it made pursuant to a real estate sale contract. The contract contained a standard mortgage contingency clause which permitted the purchaser, as well as the seller, to cancel the contract in the event of the purchaser’s failure to obtain the mortgage within a specified time. The purchaser, despite its good faith efforts, failed to obtain the mortgage within the time specified by the contract and elected to exercise its right to cancel the contract upon due notice to the seller. The seller refused to return the down payment, claiming the purchaser was in default and relying on the contract’s liquidated damages clause. The Supreme Court granted the plaintiffs motion, inter alia, for summary judgment. We affirm.

Since the intentions of the parties are expressed in plain terms, the question is one of law which may be decided on a motion for summary judgment. Here, the court properly decided that, contrary to the defendants’ contentions, the plaintiff was entitled to the return of its down payment. Lawrence, J. P., Ritter, Copertino and Santucci, JJ., concur.