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DONALD ZUCKER COMPANY v. DAVID LIEBERMAN ET AL. (05/19/92)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 45333 1992.NY.46225 <http://www.versuslaw.com>; 583 N.Y.S.2d 456; 183 A.D.2d 553 decided: May 19, 1992. DONALD ZUCKER COMPANY, APPELLANT,v.DAVID LIEBERMAN ET AL., RESPONDENTS. Concur--Sullivan, J. P., Milonas, Kupferman, Ross and Smith, JJ.


Concur--Sullivan, J. P., Milonas, Kupferman, Ross and Smith, JJ.

Order, Supreme Court, New York County (Burton S. Sherman, J.), entered January 30, 1991, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross-motion for summary judgment, unanimously modified, on the law, to deny defendants' motion for summary judgment, and, as modified, affirmed without costs or disbursements.

This is an action to recover a brokerage commission of $24,000 based on an agreement with defendants in which plaintiff real estate broker agreed to obtain a mortgage commitment in the principal sum of $2,400,000 from Continental Realty Credit Co., Inc. (the "Lender") "in accordance with the application attached hereto" and "subject to the usual terms and conditions of the Lender". Defendants (the "Borrower") agreed to pay plaintiff a 1% commission if plaintiff obtained such a commitment. The attached application enumerated "the basic terms of the requested loan" and sets forth certain specified closing requirements and the terms regarding funding of the loan, none of which includes or even suggests an escrow provision for repairs.

Approximately six weeks later, Continental advised defendants that "subject to the conditions herein outlined, this letter constitutes the commitment of [Continental] to grant a loan." The letter of commitment included numerous additional conditions that were not included in the Lender's loan application, one of which, the repair/escrow provision (Paragraph 15 [F]), required an inspection of the mortgaged property by a licensed engineer or architect to determine whether any structural and/or physical deficiencies existed. If the engineer determined that repairs were required, then, at the Lender's discretion, 130% of the estimated amount of the repair costs was to be escrowed from the loan closing funds, to be advanced to the Borrower only after completion of the designated repairs. Defendants refused to accept the commitment on the ground that this condition, as well as other additional conditions, materially altered, to their detriment, the parties' agreement and the attached mortgage application incorporated by reference therein. This action followed.

 On the parties' motion and cross-motion for summary judgment, the IAS court, noting that the deduction of the funds for the repair/escrow requirement from the proceeds of the loan would have resulted in defendants receiving less than the agreed upon amount of the loan, held that since "the loan provided was not the loan presented[,] ... defendants were within their rights in refusing to accept it." The court ...


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