R.A.J.N. Corp., Respondent, v. Nissim Mizrachi, Defendant, and Lebenkoff & Coven, Appellant

R.A.J.N. Corp., Respondent, v Nissim Mizrachi, Defendant, and Lebenkoff & Coven, Appellant. [MAJORITY] — Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about October 30, 1991, which, insofar as appealed from, denied defendant-appellant’s cross-motion for summary judgment dismissing the complaint, unanimously affirmed, with costs. Appellant’s proof fails to eliminate material issues of fact, including its knowledge of the alleged relationship between defendant buyer and the contract vendor, and whether it was advised by plaintiff that the contract for sale of the property would have to be rescinded because of misrepresentations made during the negotiations. If appellant was so advised, it would have been on notice that the closing would not occur and that plaintiff was, in effect, seeking return of the down payment. With the subsequent receipt of the seller’s competing demand for the escrow funds, appellant, as escrow agent, would then have been obligated under the rider to the contract to continue holding the funds until otherwise directed by the parties or until a judgment was rendered by a court. Moreover, appellant should remain party to the action if only to ease enforcement of any final judgment favorable to plaintiff (88 Blue Corp. v Staten Bldrs. Co., 176 AD2d 536, 538). Concur — Milonas, J. P., Rosenberger, Kupferman, Asch and Kassal, JJ.