Appeal from an order of the District Court of Nassau County, First District (Randy Sue Marber, J.), entered September 9, 2005. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In support of her motion for summary judgment, plaintiff alleges that she entered into a written contract with defendants wherein defendants agreed to provide plaintiff with real estate appraisals of eight properties. The appraisals were to be used by plaintiff in a divorce proceeding, and six of the properties to be appraised were under the control of plaintiff's then husband. Claiming, inter alia, that they could not gain access to said six properties, defendants cancelled the contract and returned to plaintiff $1,500 of the $3,350 deposit she had paid, even though the contract stated that the deposit was not refundable. In this action, plaintiff seeks the balance of the deposit, contending that defendants are not entitled to retain any portion of the deposit due to their breach of the contract in that they refused to provide the appraisals for the two properties which were under her exclusive control, they failed to notify her attorney of her former husband's lack of cooperation, and they unilaterally terminated the contract. Defendants, on the other hand, allege that both plaintiff and her former husband rendered performance impossible, and that plaintiff's attorney was aware of the lack of cooperation. Based upon the foregoing, we are in agreement with the [*2]lower court that there exist triable issues of fact which preclude the granting of summary judgment (see CPLR 3212 [b]).

Rudolph, P.J., and Tanenbaum, J., concur.

McCabe, J., taking no part.
Decision Date: October 27, 2006