Morgan v. Ehrman (254 A.D.2d 105, 1998)

Order, Supreme Court, New York County (Paula Omansky, J.), entered April 24, 1997, which, in an action to compel return of a down payment on the sale of real property, denied plaintiffs’ motion for a preliminary injunction and granted defendants’ cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

No issues of fact exist as to either the specificity and reasonableness of the sellers’ notice rescheduling the closing and imposing a condition that,,time be of the essence (Ben Zev v Merman, 73 NY2d 781), or the adequacy of their tender. The buyers’ other contentions are improperly raised for the first time on appeal, and, in any event, are unavailing. Concur— Milonas, J. P., Rosenberger, Wallach, Tom and Mazzarelli, JJ.