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PLAINTIFF, WHO LOST HIS JOB AFTER HIS MORTGAGE HAD BEEN APPROVED AND THE MORTGAGE CONTINGENCY IN THE PURCHASE CONTRACT WAS SATISFIED, WAS ENTITLED TO THE RETURN OF THE DEPOSIT, THE REVOCATION OF THE MORTGAGE COMMITMENT WAS NOT DUE TO BAD FAITH ON PLAINTIFF’S PART (SECOND DEPT).

The Second Department determined plaintiff was entitled to return of his deposit in this real estate transaction. The contract allowed the return of the deposit if plaintiff did not qualify for a mortgage within a specified period of time. Plaintiff did qualify within the allowed time. However, he subsequently lost his job and could not obtain the mortgage. Plaintiff asked for the deposit but defendant refused:

” A mortgage contingency clause is construed to create a condition precedent to the contract of sale'” … . “The purchaser is entitled to return of the down payment where the mortgage contingency clause unequivocally provides for its return upon the purchaser’s inability to obtain a mortgage commitment within the contingency period”… . “However, when the lender revokes the mortgage commitment after the contingency period has elapsed, the contractual provision relating to failure to obtain an initial commitment is inoperable, and the question becomes whether the lender’s revocation was attributable to any bad faith on the part of the purchaser”… .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law for the return of his down payment. He submitted evidence that he acted in good faith in obtaining a mortgage commitment, that the commitment was subject to re-verification of employment, and that the subsequent revocation of the commitment was not attributable to any bad faith on his part … . Chahalis v Roberta Ebert Irrevocable Trust, 2018 NY Slip Op 05135, Second Dept 7-11-18

REAL ESTATE (PLAINTIFF, WHO LOST HIS JOB AFTER HIS MORTGAGE HAD BEEN APPROVED AND THE MORTGAGE CONTINGENCY IN THE PURCHASE CONTRACT WAS SATISFIED, WAS ENTITLED TO THE RETURN OF THE DEPOSIT, THE REVOCATION OF THE MORTGAGE COMMITMENT WAS NOT DUE TO BAD FAITH ON PLAINTIFF’S PART (SECOND DEPT))/DEPOSIT (REAL ESTATE, PLAINTIFF, WHO LOST HIS JOB AFTER HIS MORTGAGE HAD BEEN APPROVED AND THE MORTGAGE CONTINGENCY IN THE PURCHASE CONTRACT WAS SATISFIED, WAS ENTITLED TO THE RETURN OF THE DEPOSIT, THE REVOCATION OF THE MORTGAGE COMMITMENT WAS NOT DUE TO BAD FAITH ON PLAINTIFF’S PART (SECOND DEPT))/MORTGAGE COMMITMENT (REAL ESTATE, PLAINTIFF, WHO LOST HIS JOB AFTER HIS MORTGAGE HAD BEEN APPROVED AND THE MORTGAGE CONTINGENCY IN THE PURCHASE CONTRACT WAS SATISFIED, WAS ENTITLED TO THE RETURN OF THE DEPOSIT, THE REVOCATION OF THE MORTGAGE COMMITMENT WAS NOT DUE TO BAD FAITH ON PLAINTIFF’S PART (SECOND DEPT))

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WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION.
DEFENSE COUNSEL SUCCESSFULLY PURSUED A MISIDENTIFICATION DEFENSE THROUGHOUT THE TRIAL BUT CONCEDED THE ISSUE IN SUMMATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; A WITNESS MAY IDENTIFY THE DEFENDANT AT TRIAL DESPITE A PROCEDURALLY-DEFECTIVE PRE-TRIAL IDENTIFICATION (SECOND DEPT).
PROPERTY OWNER’S [EMPLOYER’S] COMMON LAW DUTY TO PROVIDE SAFE PLACE TO WORK NOT TRIGGERED BY INJURY WHEN DRAWING UP AN ESTIMATE.
PLAINTIFF’S FALL FROM A LADDER OCCURRED DURING ROUTINE MAINTENANCE AND THEREFORE WAS NOT ACTIONABLE PURSUANT TO LABOR LAW 240 (1) (SECOND DEPT).
THE DENTISTS’ FEE-SPLITTING AGREEMENT VIOLATED THE EDUCATION LAW; A COURT WILL NOT ENFORCE AN ILLEGAL CONTRACT (SECOND DEPT).
THE PLAINTIFF WAS PROPERLY ALLOWED TO FILE A LATE NOTICE OF CLAIM ASSERTING A NEW CAUSE OF ACTION, ALTHOUGH THE ORIGINAL NOTICE OF CLAIM DID NOT MENTION AN ALLEGEDLY MISSING STOP SIGN AS A BASIS FOR LIABILITY, THE MISSING STOP SIGN WAS MENTIONED IN THE POLICE REPORT WHICH WAS ATTACHED TO THE ORIGINAL NOTICE OF CLAIM (SECOND DEPT).
REAL ESTATE PURCHASE CONTRACT, ALTHOUGH MISSING SOME TERMS, SATISFIED THE STATUTE OF FRAUDS, SUMMARY JUDGMENT ON THE SPECIFIC PERFORMANCE ACTION, HOWEVER, SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FAILED TO DEMONSTRATE THE FINANCIAL ABILITY TO CLOSE ON THE LAW DATE (SECOND DEPT).
ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT).

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