LANDIS, DANIEL B. v. GIACINTO, RICHARD

Memorandum:

Plaintiffs commenced this action seeking, inter alia, to recover the down payment held in escrow that was paid by defendant Richard Giacinto when he entered into a contract to purchase real estate from plaintiffs. We agree with plaintiffs that Supreme Court erred in granting defendants’ motion for summary judgment dismissing the complaint, and we therefore modify the order accordingly. A seller in a real estate transaction may be entitled to keep a down payment where a buyer willfully defaults on the contract (see Lawrence v Miller, 86 NY 131, 139-140 [1881]; see also Maxton Bldrs.…