Moundroukas v. Esco Improvements, Inc.

— In an action to recover the down payment on a contract for the sale of real property, defendant seller Esco Improvements, Inc. (Esco) and its former attorney, Herbert Litt, appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Westchester County (Rosenblatt, J.) dated November 22, 1982, which, inter alia, granted plaintiff summary judgment against Esco and directed Litt to return the down payment held by him in escrow. Order affirmed insofar as appealed from, with costs. We agree with Special Term that in light of the appellants’ joinder in plaintiff’s application for a variance and their admission before the Zoning Board of Appeals of the Town of Greenburgh of the contingent nature of the contract with plaintiff, there are no triable issues of fact precluding the granting of summary judgment (see Mallad Constr. Corp. v County Fed. Sav.. & Loan Assn., 32 NY2d 285). Gulotta, J. P., O’Connor, Weinstein and Rubin, JJ., concur.