
    Raymond Frankel, Appellant-Respondent, v James Caspi, Respondent-Appellant.
   In an action to recover a down payment for the purchase of real property, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), dated February 10, 1989, as denied his motion for summary judgment and discharged his notice of pendency, and the defendant cross-appeals from so much of the order as denied his cross motion for summary judgment.

Ordered that the order is affirmed, without costs or disbursements.

Because of the factual questions surrounding the capacity and willingness of each of the parties to. close title, we agree with the Supreme Court that summary judgment is inappropriate for either side.

At oral argument, the court was informed that the premises had been sold to a third party, and that the down payment is being held in escrow by the seller’s attorney. Under the circumstances, a notice of pendency is unnecessary. Brown, J. P., Fiber, Harwood and Rosenblatt, JJ., concur.  