Macklowe v. Dayton Holdings International N.V.

—Judgment, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered April 3, 1998 (Index No. 604062/97), awarding plaintiff damages, and bringing up for review an order, same court and Justice, entered on or about March 27, 1998, which, in an action for return of a down payment made in connection with a contract for the sale of condominium units, inter alia, granted plaintiff buyer’s motion for summary judgment, unanimously reversed, on the law, without costs, the judgment vacated, and plaintiff’s motion denied. Appeal from the above order unanimously dismissed, without costs, as subsumed in the appeal from the above judgment. Appeal from judgment, same court and Justice, entered April 9, 1998 (Index No. 604068/97), dismissing the complaint, and bringing up for review the above order, which, in an action for breach of contract for the sale of condominium units, dismissed plaintiff seller’s complaint upon the parties’ respective motions for summary judgment, unanimously reversed, on the law, without costs, and the complaint reinstated.

There exists an issue of fact which precludes summary judgment, specifically, whether the plaintiff buyer gave defendant sellers notice of the existence of the building code violations such that defendants had an opportunity to cure in order to convey title “free and clear of all liens and encumbrances other than the permitted exceptions” as set forth in the contract of sale. Concur — Ellerin, P. J., Tom, Lerner, Buckley and Friedman, JJ.