
    Phyllis Dixon et al., Respondents, v Thomas Forman et al., Appellants.
    [808 NYS2d 78]
   Judgment, Supreme Court, New York County (Marylin G. Diamond, J.), entered June 28, 2005, awarding plaintiffs the principal amount of $119,500 and dismissing the counterclaims, upon the prior grant of plaintiffs’ motion for summary judgment and the denial of defendants’ cross motion for discovery, unanimously affirmed, with costs.

Plaintiffs commenced this action for return of their down payment on the purchase of a cooperative apartment. After plaintiffs established a prima facie case that they had submitted their application in good faith, defendants failed to raise a triable issue of fact to demonstrate that there was a modification of the contract. Defendants failed to produce evidence that plaintiffs had agreed to the creation of the trust or to the other conditions imposed by the Board (Zuckerman v City of New York, 49 NY2d 557 [1980]). There was no evidence that plaintiffs had modified the contract, and, in any event, there was no evidence that defendants detrimentally relied on such a modification.

Defendants’ counterclaims were properly dismissed. They failed to demonstrate how additional discovery would aid in their defense. The court properly granted summary judgment even though discovery was incomplete (Doherty v City of New York, 16 AD3d 124 [2005]). Concur—Mazzarelli, J.P., Andrias, Marlow, Williams and Sweeny, JJ.  