Defendants move to dismiss the claim against them with prejudice on the ground that the filing of a Notice of Pendency and Specific Performance against the property involved here is improper because the only outstanding issue is money. (The court notes that Defendants, Lau & Associates, P.C., have indicated through plaintiff that they are not represented by the attorney for the other defendants).

Alternatively, they seek an order allowing them to answer, raise affirmative defenses and counter claims as well as requiring plaintiff to include all "indispensable parties."

Plaintiff cross moves for an order converting the action from one for specific performance of the real property contract of sale at issue here to a motion for summary judgment in lieu of a complaint. This request, says, plaintiff, is based on the fact that after the action was commenced, defendants sold the premises to a third-party. Further, plaintiff seeks the return of the $50,000.00 down payment along with interest, legal fees and costs.

The action has it origins in a September 19, 2006 real estate contract of sale entered into by the parties for the sale of 148-18 Laburnum Avenue, Flushing, Queens County, for [*2]$675,000.00.

As part of the contract of sale, the mortgage commitment contingency clause gave plaintiff ( purchaser) thirty (30) days from the date she received a fully executed contract to obtain a written commitment from a lender in the amount of $525,000.00.

Thirty (30) days later, October 18, 2006, plaintiff informed defendants that she had not gotten a commitment and the parties agreed to extend the time in which plaintiff had to get a mortgage to November 6, 2006. On November 8, plaintiff informed defendants that she had not gotten a mortgage commitment. She decided to cancel the contract and requested the refund of the down payment.

A day later, November 9, 2006, plaintiff told defendants that she had been denied a mortgage and again requested the return of the down payment, which defendants refused to do.

When the down payment was not returned, plaintiff commenced an action for its return on February 1, 2007. She filed a Notice of Pendency and served defendants. Subsequently, Defendants Sheldon and Kearns purchased the premises for $460,000.00 on February 15, 2007 and, on February 16, 2007, sold it to a third party.

In support of their position, defendants argue that the court lacks personal and subject matter jurisdiction in that they no longer own the property and jurisdiction and venue were based "solely on the property." The contract, they say, was consummated in Kansas. As such, they aver, the action is about money and, therefore, the matter should be litigated in the Federal District Court in Kansas. They conclude that plaintiff failed to state a claim upon such relief can be granted, adding that plaintiff failed to name Winzone Realty, Julie Wong and David Melo, all of whom, they say, either failed to disclose pertinent information or disseminated false information as to the loan commitment.

Plaintiff's retort is that the court has jurisdiction because at the time of the commencements of the action on February 1, 2007, defendants owned the premises, dispute protestations to the contrary. Further, says plaintiff, Defendant Kearns is a licensed New York Attorney, who regularly transacts and does business in New York. She adds that on February 16, 2007 when the premises was transferred to a third party, he transacted business in New York.

Both defendants Sheldon and Kerns were represented by New York attorneys, says plaintiff and, in addition, the contract of sale was executed in New York.

Pointing out that Defendants Sheldon and Kearns have brought an action in the Federal District Court in Kansas against a number of individuals and entities seeking damages said to have ben sustained by them as a result of her failure to get a mortgage, plaintiff concludes that she is entitled to the return of the down payment. [*3]

Having reviewed the stance taken by the parties, the court hereby grants plaintiff's cross-motion to convert the action from one of specific performance to one for summary judgment in lieu of a summons and complaint. See CPLR, Section 3213.

As to the issue of jurisdiction, plaintiff has established that jurisdiction is properly placed in New York. At the time the action was commenced, February 1, 2007, defendants owned the premises, which was the subject of the law suit. Tebedo v. Nye, 45 Misc 2d 222. Further, it appears that Defendant Kearns transacted business in New York. See CPLR, Section 302.

Further, the lis pendens was properly placed on the premises in that at least one owner, Defendant Sheldon, was properly served within the required thirty (30) days of its filing. See CPLR, Section 6512. The service was appropriate especially where , as here, there is an assertion that one defendant, Kearns, was avoiding service.

With the questions of converting the motion to one for summary judgment, jurisdiction and the lis pendis resolved, the issue now is whether summary judgment is warranted. Or, more to the point, are there questions of fact which prevent the granting of summary judgment?

The parties do not dispute that they had a contract with a $50,000.00 down payment. When the premises was sold to a third-party, the issue came down to whether the contract had been breached with plaintiff's failure to get a written commitment for a mortgage.

The contract stated that plaintiff's down payment would be returned if she showed she could not get a written mortgage commitment. She produced a written denial of a mortgage from a lender. Thus, her down payment should have been returned. (See attached minutes ordering the return of the down payment). See, WWW Assoc v. Giancontieri, 77 NY2d 162. There are no questions of fact, and therefore, summary judgment is granted and the matter set down for a hearing on legal fees and costs on October 25, 2007.

Dated: September 19, 2007

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J.S.C.