Fusco v. Park 900 Condominium

Supreme Court, New *243York County (William Davis, J.), entered on or about August 18, 1989, which, inter alia, denied plaintiff’s cross motion for partial summary judgment, without prejudice to renewal upon completion of discovery, unanimously affirmed, without costs.

Plaintiff, Louis Fusco, Jr., entered into an agreement with defendant Park 900 Condominium (Park 900) for the assignment of Park 900’s option to acquire a condominium unit through the exercise of its right of first refusal. In the event that plaintiff’s lending institution failed to close on its mortgage loan to plaintiff in connection with plaintiff’s purchase of the unit "for any reason not due to Buyer [plaintiff]”, the funds (previously) advanced by plaintiff were to be treated as a loan payable either 33 days after plaintiff’s failure to complete the agreement or the date Park 900 acquired title to the unit, whichever occurred first. The parties appeared at closing, but plaintiff never acquired title.

There are sharp differences as to why the transaction fell through. According to plaintiff, defendant Park 900 wrongfully refused plaintiff’s lending institution’s request for a short adjournment of closing, prompted by a report that a lis pendens had been, or was about to be, filed. Defendant Park 900, on the other hand, alleges through its agent, who was present at the closing, that plaintiff’s failure to close was solely a decision made by plaintiff for personal reasons. In view of the factual controversies surrounding this dispute, summary judgment was properly denied. Concur—Kupferman, J. P., Kassal, Wallach and Rubin, JJ.