Opinion
September 30, 1980
Order of the Supreme Court, New York County, entered January 3, 1980, which, inter alia, granted defendant's motion dismissing the complaint for failure to state a cause of action, unanimously modified, on the law, to deny defendant's motion in its entirety and otherwise affirmed, without costs or disbursements. Special Term correctly concluded that the motion and cross motion for summary judgment were premature. Issue had not been joined by service of an answer (CPLR 3212). Special Term incorrectly dismissed the complaint. Although the facts alleged in the complaint appear to be unclear, nevertheless the liberal construction which must be afforded to that pleading (CPLR 3026) in this motion before us, supports the conclusion that the complaint sets forth a cause of action for the return of the deposit. Contrary to the finding at Special Term, it cannot be said as a matter of law on the complaint that there was a willful default, or for that matter any default under the parties' contract as amended, that would entitle defendant to retain the deposit given by plaintiff to defendant in this contemplated real estate transaction. Such conclusion, espoused by defendant, should rest upon facts to be adduced at trial or more detailed evidentiary disclosures on an appropriate motion for summary judgment.
Concur — Murphy, P.J., Kupferman, Birns, Markewich and Silverman, JJ.