Order entered August 6, 1982, Supreme Court, New York County (H. Schwartz, J.), denying defendant’s motion for summary judgment, affirmed, with costs.
Typed and handwritten into the standard “Blumberg” form is a paragraph (par 21 [b]) which states: “Accordingly, notwithstanding anything to the contrary contained in this Contract of Sale * * * (b) This Contract of Sale is conditional upon and subject to the building actually being converted to cooperative ownership, the conveyance of the title to the Building to 10 West 66th Street Corporation, and the purchase and acquisition by the Seller of the Shares and Lease in which event the Down Payment will be returned to Purchaser.”(Underscored matter handwritten in and initialed by both parties.) When the three conditions occurred the $100,000 “down payment” was not returned, and the parties sharply dispute the meaning of this clause.
Both sides present facially plausible versions of what took place and what their agreement was meant to accomplish. We agree with Special Term that a trial on the merits can best resolve these factual questions. Certainly appellant should not be allowed to retain respondent’s $100,000 simply by bringing a motion for summary judgment, in light of the ambiguity in the above paragraph. Concur — Kupferman, J. P., Carro, Silverman and Fein, JJ.
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