By Duffy, J.P.; Connolly, Zayas, Wan, JJ.
313 43RD STREET REALTY, LLC, res-app, v. TMS ENTERPRISES, LP, ET AL., app-res, ET AL., def — (Index No. 512785/15) Steven G. Legum, Mineola, NY, for appellants-respondents. Heller, Horowitz & Feit, P.C., New York, NY (Eli Feit and Stuart A. Blander of counsel), for respondent-appellant. In an action to recover two down payments made pursuant to two contracts for the sale of real property, the defendants TMS Enterprises, LP, and 313 43rd Street Realty Associates, Ltd., appeal, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated October 31, 2019. The order, insofar as appealed from, denied the motion of the defendants TMS Enterprises, LP, and 313 43rd Street Realty Associates, Ltd., for summary judgment dismissing the complaint insofar as asserted against them and on their first and second counterclaims. The order, insofar as cross-appealed from, denied the plaintiff’s cross-motion for summary judgment on the complaint and directing the defendants to return to the plaintiff the down payments made pursuant to the contracts for the sale of real property, and, in effect, for summary judgment dismissing the first and second counterclaims asserted by the defendants TMS Enterprises, LP, and 313 43rd Street Realty Associates, Ltd. ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. The plaintiff (hereinafter the buyer) commenced this action to recover two down payments that were made pursuant to two contracts for the sale of two parcels of real property. The defendants TMS Enterprises, LP, and 313 43rd Street Realty Associates, Ltd. (hereinafter together the sellers), interposed an amended answer that included three counterclaims. The first two counterclaims alleged that the buyer breached the contracts of sale and that the sellers were therefore entitled to retain the down payments. The sellers moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The buyer cross-moved for summary judgment on the complaint and directing the defendants to return the down payments, and, in effect, dismissing the sellers’ first and second counterclaims. In an order dated February 19, 2016, the Supreme Court, among other things, denied that branch of the sellers’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint, and granted the buyer’s cross-motion. On March 16, 2016, a judgment was issued, inter alia, in favor of the buyer and against the sellers dismissing the sellers’ first and second counterclaims, and in favor of the buyer and against the defendants on the complaint and directing them to return to the buyer its down payments in the total principal sum of $680,000. The sellers appealed from the judgment.
