Opinion
March 26, 1990
Appeal from the Supreme Court, Westchester County (Ruskin, J.).
Ordered that the order is affirmed, without costs or disbursements.
Because of the factual questions surrounding the capacity and willingness of each of the parties to close title, we agree with the Supreme Court that summary judgment is inappropriate for either side.
At oral argument, the court was informed that the premises had been sold to a third party, and that the down payment is being held in escrow by the seller's attorney. Under the circumstances, a notice of pendency is unnecessary. Brown, J.P., Eiber, Harwood and Rosenblatt, JJ., concur.