Springer v. 121 Varick Twelfth Floor, LLC ( 2013 )

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 15, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiffs’ motion for summary judgment, unanimously affirmed, with costs.

In this case involving an alleged computational error made at the closing for the sale of a cooperative unit, the motion court properly determined that there are issues of fact precluding an award of judgment as a matter of law (see CPLR 3212 [b]). Plaintiffs argue that defendant was not entitled to a credit it received at closing and that they gave defendant timely notice of the alleged error. Therefore, plaintiffs argue, defendant must return the money. However, the record presents a question of fact as to whether the parties agreed to the credit or whether it was, in fact the result of a computational error that survived the closing.

Despite the IAS court’s finding otherwise, the record presents no issue of fact regarding whether plaintiffs provided timely notice of the claim computational error. On the contrary, defendants did not dispute receiving the notice within six months as required under the co-op contract. Further, even though plaintiffs failed to include in the notice a $30,000 credit due to defendant, the notice of the claimed computational error was not defective in an way, and plaintiffs later amended their complaint to reflect the $30,000 credit. Concur — Andrias, J.P, Acosta, Moskowitz, Richter and Manzanet-Daniels, JJ.