Ennin v. Carion

—In an action to recover the down-payment made pursuant to a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated April 20,1995, which granted the defendant’s motion for summary judgment dismissing the complaint and directed the release of the downpayment to her. [889] Ordered that the order is reversed, on the law, with costs, the defendant’s motion for summary judgment is denied, and the complaint is reinstated. The defendant failed to make a prima facie showing of entitlement to summary judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320). Specifically the defendant failed to demonstrate, inter alia, that she validly fixed the law day for October 26, 1990, by virtue of a letter allegedly faxed to the appellant’s attorney on October 19,1990 (see, Klein v Opert, 218 AD2d 784), or that she was ready, willing, and able to convey title on the alleged law day free of violations or with an escrow sufficient to assure removal of existing violations, as required by the contract of sale (see, Provost v Off Campus Apts. Co., II, 211 AD2d 850; 3M Holding Corp. v Wagner, 166 AD2d 580). O’Brien, J. P., Sullivan, Joy and McGinity, JJ., concur.