Jarecki v. Rosenblatt , 412 N.Y.S.2d 146 ( 1979 )

— Order, Supreme Court, Bronx County, entered June 28, 1978, denying plaintiff’s motion for partial summary judgment on the cause of action for return of a down payment, unanimously reversed, on the law, and partial summary judgment granted to the plaintiff, with $75 costs and disbursements of this appeal to appellant by defendants-respondents. The plaintiff, Henry G. Jarecki, had entered into a letter agreement with Richard Rosenblatt for the purchase of real property for $400,000 and submitted simultaneously a check in the amount of $25,000 which was to be forfeited if Jarecki "withdrew from the bid.” Rosenblatt warranted that he had "good, conveyable, free and clear title to the properties” and "enforceable 60-day eviction clauses.” On June 21, 1977, the parties’ attorneys met and a contract of sale was offered containing numerous exceptions to title, and Jarecki’s attorney claimed that this did not conform to the letter agreement of the parties. Rosenblatt’s position was that the objections were frivolous, and Jarecki intended to withdraw. The $25,000 deposit was not returned. The property was sold to another. Jarecki brought this action seeking, inter alia, return of the $25,000 deposit. Jarecki moved for partial summary judgment, which was denied by Special Term. We would reverse. The letter agreement provided that title would be conveyed "free and clear” and with "enforceable 60-day eviction clauses.” Those conditions were not met, and Jarecki was therefore entitled to the return of his down payment (Rhodes v Astro-Pac, Inc., 41 NY2d 919). Settle order. Concur — Kupferman, J. P., Birns, Lane, Sandler and Sullivan, JJ.