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Decided on September 19, 2007
Supreme Court, Queens County

2958/07
Duane A. Hart, J.
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

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