Gong v Eng, 2011 NY Slip Op 08301 [89 AD3d 576]

November 17, 2011

Appellate Division, First Department

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Randall T. Sims, New York, for appellants-respondents.

Hofheimer Gartlir & Gross, LLP, New York (David L. Birch of counsel), for respondent-appellant/respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered December 29, 2010, which denied plaintiffs’ and defendants’ motions for summary judgment, unanimously affirmed, with costs.

Plaintiffs seek return of a down payment, as well as the recovery of expenses and attorneys’ fees, with respect to a failed real estate transaction. There are triable issues of fact, including whether the fence and air conditioner support beams were minor encroachments that did not render title uninsurable and whether they were curable within a reasonable time. Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Acosta and Abdus-Salaam, JJ..