Eliezer v. Schwitzer

In an action, inter alia, to recover a down payment made pursuant to a contract for the sale of real property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vinik, J.), dated August 8, 1989, as granted that branch of the plaintiffs motion which was for summary judgment on the first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiffs motion for summary judgment is denied in its entirety.

Summary judgment was improperly granted to the plaintiff on the first cause of action as there are questions of fact in this case including, among others, the parties’ intentions as to the date of closing, and whether the plaintiff buyer was ready, willing, and able to close on October 15, 1987. Brown, J. P., Eiber, Rosenblatt and Ritter, JJ., concur.