In a January 31, 2012 decision by Justice Oing, the court denied a motion to reargue the denial of defendants’ summary judgment motion. Plaintiff was supposed to purchase a $3 million property from defendants but failed to do so, arguing that two commercial units in the property had been illegally combined in contravention to the property’s certificate of occupancy. Plaintiff sued to recover its $150,000 deposit and defendants counterclaimed for a declaration that they were entitled to keep the down payment. The parties disputed whether the nonconforming use was, under the contract, a defect that defendants had to cure. The court determined that there was no dispute that the parties were discussing a remedy for the nonconforming, but there was an issue of fact as to what steps, if any, defendants took prior to the closing to rectify the situation requiring the denial of defendants’ summary judgment motion.
Latipac Corp. v. Birchard and Haddock, Sup Ct, New York County, January 31, 2012, Oing, J, Index No. 603299/09.