ZIFF v. WEINSTEIN (1997)

Supreme Court, Appellate Division, First Department, New York.

Robert D. ZIFF, Petitioner-Respondent, v. Rose Ann WEINSTEIN, et al., Respondents-Appellants.

Decided: May 01, 1997

Before SULLIVAN, J.P., and ROSENBERGER, WALLACH, RUBIN and TOM, JJ.

Christopher R. Gette, for Petitioner-Respondent. Michael J. Agusta, for Respondents-Appellants.

Judgment, Supreme Court, New York County (Paula Omansky, J.), entered May 14, 1996, which, in a proceeding for the return of a downpayment in connection with the sale of a cooperative apartment, determined that petitioner is entitled to the entire amount of funds held in escrow, unanimously affirmed, with costs.

Petitioner is entitled to return of the downpayment because the contract of sale specifically provided that time was of the essence and because respondent seller was unable to prove that she was the sole owner of the coop shares either at the time of execution of the contract (as represented therein) or upon the stipulated law day for closing. Furthermore, a restraining notice issued by a bank the day before closing barring the transfer of the shares was facially valid, and independently constituted a material breach of the contract. We have considered respondents' remaining contentions and find them to be without merit.

MEMORANDUM DECISION.

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