Morris H. Wheeler et al., Respondents, v. Arthur W. Grieg, Defendant, and Martha Siegler, Appellant

Morris H. Wheeler et al., Respondents, v Arthur W. Grieg, Defendant, and Martha Siegler, Appellant. [637 NYS2d 394] [MAJORITY] —Order, Supreme Court, New York County (Herman Cahn, J.), entered January 18, 1995 which, inter alia, granted plaintiffs’ cross motion for summary judgment for the return of a contract deposit, unanimously affirmed, with costs. The mortgage contingency clause in the standard form contract for the sale of a cooperative apartment was not deleted and, in fact, a mortgage amount was set forth therein. The language in the rider to the contract, relied upon by defendant-appellant seller, does not clearly provide that the closing would take place on an all cash basis if the purchasers did not obtain the mortgage. Accordingly, there being no conflict or inconsistency between the standard form contract and the rider, the provisions of the standard form contract allowing for return of the down payment when the financing contingency clause could not be satisfied must be given effect. The claim that plaintiffs purchasers did not act in good faith in applying for the loan is wholly conclusory and indeed, contradicted by documents and affidavits in the record. Concur — Sullivan, J. P., Ellerin, Ross, Nardelli and Tom, JJ.