Spiegelman v. Gordon

—In an action, inter alia, to recover the down payment on two real estate contracts, the defendant S. Martin Gordon appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered August 13, 1993, which denied his motion for summary judgment, and granted the plaintiffs’ cross application for summary judgment. Ordered that the order is affirmed, with costs. The subject contracts of sale included mortgage contingency clauses. Although the purchasers secured loan commitments, the conditions of the purchasers’ loan commitments were "not fulfilled through no fault of the purchasers” (Lunning v 10 Bleecker St. Owners Corp., 160 AD2d 178; see, Cone v Daus, 120 AD2d 788, 789-790), but, rather, as a result of the seller’s lack of cooperation. Accordingly, the purchasers were properly granted summary judgment. The appellant’s remaining contention does not warrant reversal. Bracken, J. P., Sullivan, Miller and Goldstein, JJ., concur.