Justice Scheinkman
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PLAINTIFFS sought to recover a portion of a down payment proffered in connection with a contract to purchase defendant’s residence. Defendant moved for summary judgment dismissing plaintiffs’ claims. The parties entered into a “side letter agreement” providing that $20,000 of plaintiffs’ $86,000 down payment would be non-refundable with a few exceptions, including if plaintiffs received an appraisal from their lending institution stating the value of the premises at an amount less than the purchase price. Plaintiffs argued their lender stated no acceptable appraisal could be obtained as the property was non-conforming. The court found defendant’s documentary proof demonstrated that an appraisal was undertaken during the contingency period for plaintiff’s lender and the “opinion of site value” was $950,000, exceeding the purchase price. It found defendant made a prima facie showing of entitlement to judgment as plaintiffs failed to proffer the required appraisal to defendant within the contingency period. Thus, as defendant’s contractual obligation to return the “non-refundable” portion of the down payment did not attach, she was entitled to summary judgment dismissing the complaint.
