Chatziantoniou v. Berkey (155 A.D.2d 411, 1989)

— In an action to recover a down payment under a canceled contract for the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), entered February 24, 1988, which denied their motion for summary judgment.

Ordered that the order is affirmed, with costs.

We conclude that the Supreme Court acted properly in denying the plaintiffs’ motion for summary judgment. Issues of fact exist as to whether the plaintiffs are entitled to recover the down payment which they paid to the defendants pursuant to the terms of the parties’ subsequently canceled contract of sale regarding a certain parcel of real property owned by the defendants. Moreover, the mere fact that the defendants later sold the subject real property at a price in excess of that provided for in the parties’ contract of sale does not require a different result (see, Levine v Trattner, 130 AD2d 462). Mollen, P. J., Lawrence, Eiber and Hooper, JJ., concur.