HSM Real Estate, Inc. v. Dragon

In an action to retain a down payment given pursuant to a contract for the sale of real property, the defendant appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered March 4, 2011, which, inter alia, granted the plaintiffs motion for summary judgment on the complaint. Ordered that the order is affirmed, with costs. “Generally, a buyer who breaches a contract by applying for a mortgage loan greater than the one required under the express terms of the contract is not entitled to recover his down payment” (Marx v Shustek, 226 AD2d 351, 352 [1996]; cf. Gorgoglione v Gillenson, 47 AD3d 472 [2008]). The plaintiff seller established, prima facie, that the defendant purchaser breached the parties’ contract for the sale of real property by applying for a mortgage loan in the sum of $455,000, an amount that exceeded the provision in the parties’ contract requiring the defendant to secure a mortgage loan in the amount of $400,000 (see Humbert v Allen, 89 AD3d 804, 807 [2011]; Post v Mengoni, 198 AD2d 487 [1993]; Silva v Celella, 153 AD2d 847 [1989]). In opposition, the defendant failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly the Supreme Court properly granted the plaintiffs motion for summary judgment on the complaint. The defendant’s remaining contentions are without merit. Balkin, J.P, Belen, Hall and Miller, JJ., concur.