Mauro v. Collins

In an action to recover the down payment pursuant to a contract for the sale of real property, the plaintiffs appeal from an amended order and judgment (one paper) of the Supreme Court, Nassau County (Franco, J.), entered December 16, 2003, which converted the defendants’ motion, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) to a motion for summary judgment and granted the motion and is in favor of the defendants and against them, dismissing the complaint. Ordered that the amended order and judgment is affirmed, with costs. The Supreme Court properly granted summary judgment to the defendants because they submitted sufficient evidence to establish their entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). The contract of sale executed by the plaintiffs and the defendants Warren Collins and Pauline Collins (hereinafter collectively Collins) provided that a mortgage commitment from the plaintiffs’ lender would he considered firm between the plaintiffs and Collins even though the commitment contained a condition requiring the sale of the plaintiffs’ home before a closing could take place. This clause precluded the plaintiffs from repudiating the sales contract by relying on the failure to sell their home (see Thompson v Barry Berman Realty Assoc., 300 AD2d 390 [2002]; see also Orea v D’Auria, 160 AD2d 694 [1990]). The plaintiffs’ remaining contention is without merit. Prudenti, P.J., Schmidt, Luciano and Lifson, JJ., concur.