Moss v. Brower

—Order, Supreme Court, New York County (Beverly S. Cohen, J.), entered May 26, 1993, which, inter alia, denied plaintiff’s motion for summary judgment, unanimously reversed, on the law and the facts, and plaintiff’s motion for summary judgment directing return of the down payment, with interest, is granted, without costs. In this action to recover an escrow deposit pursuant to a contract of sale for a cooperative apartment, the court erred in denying plaintiff’s motion for summary judgment. A fair reading of the record establishes that there was no final agreement between plaintiff-appellant and the cooperative board as to specific conditions demanded by the cooperative board for its approval of appellant as a shareholder. The November 11, 1991 letter from appellant to John Martinen, a member of the cooperative board, is clearly nothing more than an offer. The affidavit of John Martinen, that the offer was never accepted and that appellant and the board never reached agreement on the conditions, is conclusive. On this record, plaintiff is entitled under the terms of his contract to return of the down payment because the approval of the cooperative board was not finally obtained. (See, Meyer v Nelson, 83 AD2d 422.) Reargument granted, and upon reargument the unpublished decision and order of this Court entered on December 20, 1994 (Appeal No. 53451) is recalled and vacated and a new decision [216] and order substituted therefor, decided simultaneously herewith. Concur—Murphy, P. J., Sullivan, Nardelli and Tom, JJ.