Opinion
2001-08138
Submitted January 4, 2002.
January 28, 2002.
In an action to recover damages for breach of a real estate contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered July 10, 2001, which denied her motion for summary judgment on her first through fourth causes of action.
Vivian I. Hausch, White Plains, N.Y., for appellant.
Before: NANCY E. SMITH, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT, BARRY A. COZIER, JJ.
ORDERED that the order is affirmed, without costs or disbursements.
The Supreme Court properly denied the plaintiff's motion for summary judgment on her first through fourth causes of action, which seek to retain the defendant's $20,000 down payment as damages for breach of the parties' real estate contract. There are triable issues of fact as to whether the plaintiff's consent to close title on December 2, 1999, was conditioned upon the defendant's promise to execute a possession agreement, and whether the plaintiff's failure to appear for the scheduled closing on December 2, 1999, breached the covenant of good faith and fair dealing implied in every contract (see, Miller v. Almquist, 241 A.D.2d 181; Tepedino v. City of Long Beach, 226 A.D.2d 446; Binks v. Farooq, 178 A.D.2d 999). There are also issues of fact as to whether the plaintiff waived strict compliance with the provisions of the mortgage contingency clause, and whether the defendant exercised good faith to retain the mortgage commitment which was previously issued by her lender (see, Creighton v. Milbauer, 191 A.D.2d 162).
SMITH, J.P., KRAUSMAN, SCHMIDT and COZIER, JJ., concur.