Morgan Barrington Financial Services v. Severino , 810 N.Y.S.2d 451 ( 2006 )

Order, Supreme Court, Bronx County (Barry Salman, J.), entered November 15, 2004, which granted defendant’s motion for summary judgment dismissing the complaint and awarded him the $50,000 down payment as liquidated damages, unanimously affirmed, with costs.

The IAS court properly granted defendant seller summary judgment where the plaintiff purchaser, who was experienced in real estate transactions of this nature, presented no probative evidence to show its ability to close at a time-of-the-essence, second rescheduled closing, some seven months after the contract signing. The seller met its initial burden of showing, prima facie, that it was ready, willing and able to deliver good and marketable title on the date of the third closing. The burden having shifted, the buyer then failed to establish it possessed the necessary financing and proof of insurance to close in a timely fashion on the $1,075,000 contract price (see Sikander v Prana-BF Partners, 22 AD3d 242 [2005]; International Baptist Church, Inc. v Fortini, 20 AD3d 507 [2005]). The buyer unreasonably opted to challenge the amount of its lender’s attorneys’ fee at the closing, rather than paying the comparatively insignificant, disputed fee under protest and complying with its obligations under the parties’ contract of sale. Concur— Buckley, P.J., Mazzarelli, Marlow, Sullivan and Sweeny, JJ. [Recalled and vacated, 27 AD3d —, Mar. 30, 2006.]