Opinion
December 30, 1992
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Callahan, J.P., Boomer, Green, Lawton and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted summary judgment to plaintiffs. The agreement for the sale of the laundromat business to plaintiffs provides: "Contract subject to assuming or negotiating lease acceptable to purchasers." The record establishes that plaintiffs were unable to assume or negotiate a lease acceptable to them. Therefore, plaintiffs are entitled to the return of their deposit (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106, 113; Perna v Desai, 101 A.D.2d 857, affd 63 N.Y.2d 898).