
    Betty A. D’Agnese, Appellant, v Diana Spinelli, Respondent.
    [737 NYS2d 301]
   In an action to recover damages for breach of a real estate contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered July 10, 2001, which denied her motion for summary judgment on her first through fourth causes of action.

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

The Supreme Court properly denied the plaintiffs motion for summary judgment on her first through fourth causes of action, which seek to retain the defendant’s $20,000 down payment as damages for breach of the parties’ real estate contract. There are triable issues of fact as to whether the plaintiffs consent to close title on December 2, 1999, was conditioned upon the defendant’s promise to execute a possession agreement, and whether the plaintiffs failure to appear for the scheduled closing on December 2, 1999, breached the covenant of good faith and fair dealing implied in every contract (see, Miller v Almquist, 241 AD2d 181; Tepedino v City of Long Beach, 226 AD2d 446; Binks v Farooq, 178 AD2d 999). There are also issues of fact as to whether the plaintiff waived strict compliance with the provisions of the mortgage contingency clause, and whether the defendant exercised good faith to retain the mortgage commitment which was previously issued by her lender (see, Creighton v Milbauer, 191 AD2d 162). Smith, J.P., Krausman, Schmidt and Cozier, JJ., concur.  