Jeffrey S. Klein

The plaintiffs entered into an Agreement of Purchase and Sale with the defendant seller and provided a deposit to the defendant real estate brokerage.

The seller repudiated the agreement but refused to consent to the return of the deposit, forcing the plaintiffs to commence an action and bring a motion for summary judgment.

The seller eventually consented to the return of the deposit after the motion record was served.

The court awarded the plaintiffs substantial indemnity costs against the seller due to his unreasonable conduct, but awarded no costs against the brokerage.

The defendant real estate brokerage sought leave to appeal to the Divisional Court from an order dismissing its motion for summary judgment.

The underlying motion argued that the plaintiff's negligent misrepresentation claims regarding suspected mortgage frauds were statute-barred.

The motion judge had found a genuine issue for trial regarding when the plaintiff reasonably discovered the claims against the listing agent.

The Superior Court dismissed the application for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision and concluding that the discoverability issue required a trial.