Opinion
2014-01-29
Beverly WALKER, respondent, v. Debra CASCARDO, appellant, et al., defendant.
Debra Cascardo, Armonk, N.Y., appellant pro se. Andrew B. Schultz, Great Neck, N.Y., for respondent.
Debra Cascardo, Armonk, N.Y., appellant pro se. Andrew B. Schultz, Great Neck, N.Y., for respondent.
In an action to recover a down payment made pursuant to a contract for the sale of real property, the defendant Debra Cascardo appeals from (1) an order of the Supreme Court, Nassau County (Adams, J.), dated January 11, 2012, which granted the plaintiff's motion for summary judgment on the complaint and denied her cross motion pursuant to CPLR 3124 to compel the plaintiff to comply with certain discovery demands, and (2) an order of the same court dated March 22, 2012, which, inter alia, denied that branch of her motion which was for leave to renew and reargue her opposition to the plaintiff's motion for summary judgment on the complaint and her cross motion pursuant to CPLR 3124 to compel the plaintiff to comply with certain discovery demands.
ORDERED that the order dated January 11, 2012, is affirmed; and it is further,
ORDERED that the appeal from so much of the order dated March 22, 2012, as denied that branch of the motion of the defendant Debra Cascardo which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated March 22, 2012, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The plaintiff and the defendant Debra Cascardo entered into a contract of sale for certain real property pursuant to which the plaintiff made a down payment of $16,000. The contract of sale contained a mortgage contingency clause which provided that the plaintiff's obligation to purchase the property was conditioned upon the plaintiff securing a firm mortgage commitment within a certain period of time. In the event that the plaintiff was unable to timely secure such a commitment in accordance with the contract of sale, the plaintiff and Cascardo were each granted the right to cancel the contract of sale and, under either such circumstance, the down payment was to be returned to the plaintiff.
Subsequently, the plaintiff commenced this action to recover the down payment made pursuant to the contract of sale and moved for summary judgment on the complaint. The plaintiff established, prima facie, her entitlement to judgment as a matter of law by demonstrating that she was unable to secure a firm mortgage commitment in accordance with the contract of sale and that she was entitled to the return of her down payment pursuant to the terms of the contract ( see Severini v. Wallace, 13 A.D.3d 434, 435, 787 N.Y.S.2d 50; Munson v. Germerican Assoc., 224 A.D.2d 670, 638 N.Y.S.2d 739; Kressel, Rothlein & Roth v. Gallagher, 155 A.D.2d 587, 547 N.Y.S.2d 653). In opposition, Cascardo failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint.
Cascardo's remaining contentions have been rendered academic by our determination, are without merit, or are not properly before this Court. MASTRO, J.P., CHAMBERS, LOTT and MILLER, JJ., concur.