Fumerelle v. Performance Rides, Inc.

Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted summary judgment to plaintiffs. The agreement for the sale of the laundromat business to plaintiffs provides: "Contract subject to assuming or negotiating lease acceptable to purchasers.” The record establishes that plaintiffs were unable to assume or negotiate a lease acceptable to them. Therefore, plaintiffs are entitled to the return of their deposit

*1015(see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 113; Perna v Desai, 101 AD2d 857, affd 63 NY2d 898). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.) Present — Callahan, J. P., Boomer, Green, Lawton and Boehm, JJ.