Harper v. Rodriguez

—In an action for a judgment declaring that a binding contract was entered into between the parties for the sale of real property and that the plaintiffs are entitled to the return of their down payment, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Held, J.), dated April 7, 1999, as denied that branch of their motion which was for summary judgment on the complaint. Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment on the complaint is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that no binding contract between the parties for the sale of real property was formed and that the plaintiffs are entitled to the return of their down payment, which was deposited into court pursuant to an order dated June 2, 1997. The unilateral modifications to the residential contract of sale made by the defendants, the sellers, constituted a counteroffer, which was expressly rejected by the plaintiffs, the purchasers. Because there was no meeting of the minds as to an essential term of the agreement, there was no binding contract, and the plaintiffs are entitled to the return of their down payment (see, Levi v Smith, 242 AD2d 564; May v Wilcox, 182 AD2d 939). O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.