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Real Property Law
No Release of Escrow When Questions of Fact Remain About Breach
Schmuelian v. Bichoupan 2024 WL 1290524 AppDiv, Second Dept. (memorandum opinion)
In sellers' action for a declaration that sellers were entitled to release of an escrow deposit, sellers appealed from Supreme Court's grant of summary judgment to purchasers directing the escrow agent to release the escrowed funds to purchaser. The Appellate Division modified to hold that neither party was entitled to summary judgment because issues of fact remained about whether purchasers' actions caused breach by sellers.
After the parties entered into a sale contract but before closing, a title report revealed the existence of three open building permits with respect to the property. As a result, at closing, sellers deposited $35,000 of the purchase price into an escrow account pursuant to an agreement that required sellers to obtain proof that the project improvements had been completed or proof of cancellation of the open permits. Sellers obtained proof of the completion of one of the three improvement but not the others. Purchasers then demanded release of the escrowed funds, and sellers responded by bringing this action for a judgment declaring that they were entitled to release of the funds. Supreme Court granted summary judgment to purchasers, and sellers appealed.
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