IN RE: Suzanne Bradbeer (2015)

Supreme Court, Appellate Division, First Department.

IN RE: Suzanne Bradbeer, et al., Petitioners–Respondents, v. Eric T. Schneiderman, Attorney General of the State of New York, Respondent, Fifth on the Park Condo, Respondent–Appellant.

1641 1

Decided: December 15, 2015

Friedman, J.P., Andrias, Gische, Kapnick, JJ.

Rosenberg Feldman Smith, LLP, New York (Richard B. Feldman of counsel), for appellant. Tane Waterman & Wurtzel, P.C., New York (Stewart E. Wurtzel of counsel), for respondents.

Judgment, Supreme Court, New York County (Peter H. Moulton, J.), entered July 10, 2014, vacating respondent Attorney General's determination, dated December 17, 2012, which denied the petition for the return of a down payment on a condominium, and awarding petitioners the return of their down payment, unanimously affirmed, without costs.

The court correctly found that the petition was not time-barred since it was filed within four months after the issuance of the determination by which petitioners were aggrieved (see Matter of Cowan v. Kelly, 89 AD3d 572 [1st Dept 2011] ).

The court correctly found that the determination was arbitrary and capricious. An amendment to the offering plan contained changes to the plan that were materially adverse to the purchasers, entitling the purchasers to rescission of the purchase agreement and the return of their down payment (see 13 NYCRR 20.5[a][5] ). Among these changes was the addition of legal and equitable remedies, including specific performance, not previously available to the sponsor (respondent Fifth on the Park Condo), in the event of a default by a purchaser. Contrary to Fifth on the Park Condo's contention, these remedies were applicable to petitioners.

CLERK

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