Rustum v Pinto, 2011 NY Slip Op 08297 [89 AD3d 574]

November 17, 2011

Appellate Division, First Department

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Agovino & Asselta, LLP, Mineola (Robert C. Buff of counsel), for appellant.

Baker, Leshko, Saline & Blosser, LLP, White Plains (Mitchell J. Baker of counsel), for respondents.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered March 3, 2011, which, in this action for breach of contract arising out of the sale of a cooperative apartment unit, granted plaintiffs’ motion for summary judgment directing defendant escrow agent to return their $290,000 down payment, and denied the cross motion of defendant apartment owner Camila Pinto for summary judgment seeking to retain the contract deposit, unanimously affirmed, with costs.

The court properly granted plaintiffs’ motion, because, in giving effect to the plain meaning of the unambiguous contract language ( see Bailey v Fish & Neave , 8 NY3d 523 , 528 [2007]), it found that plaintiffs were unsuccessful in obtaining a “Loan Commitment Letter,” within the meaning of the parties’ contract of sale. Plaintiffs properly cancelled the contract, since paragraph 18.3.1.3 authorized them to cancel the contract if a loan commitment letter contained unmet conditions not concerning plaintiffs. Here, the commitment letter was conditional upon two requirements that were within the control of the lender ( see Zellner v Tarnell , 65 AD3d 1335 [2009]; Kapur v Stiefel , 264 AD2d 602, 603 [1999]). Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Acosta and Abdus-Salaam, JJ..