Appeal by plaintiff from an order of the Civil Court, Kings County (P. Sweeney, J.), entered April 5, 2004, which denied his motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiff instituted this action for the return of his deposit following his cancellation of a contract to purchase a cooperative apartment due to his failure to obtain Board approval. Although the contract provided for a return of the deposit upon the failure of the purchaser to obtain Board approval, there are, as the Civil Court noted, issues of fact as to whether plaintiff complied with the conditions of the contract relating to same. In addition, there are issues of fact as to the intention of the parties relative to their actions in preparing and submitting a second application to the Board. It is unclear
from the record whether defendants, by assisting in the preparation and filing of said second application, waived prior defaults by plaintiff, if any. It is also unclear to what extent the parties actions affected the time limitations set forth in paragraph 6.3 of the contract. [*2]
Decision Date: April 13, 2005