
    John Puntoriero et al., Respondents, v Daniel Vecchio et al., Appellants.
    (Appeal No. 1.)
   — Order insofar as appealed from unanimously reversed on the law without costs and cross motion denied. Memorandum: The court granted plaintiffs’ cross motion for summary judgment granting specific performance of an oral contract for the conveyance of real property, holding that the unrebutted proof established part performance sufficient to take the contract out of the Statute of Frauds (General Obligations Law § 5-703 [2]). We note that defendant husband also admitted at his deposition that an agreement to transfer the property existed.

The court erred, however, in granting plaintiffs’ cross motion for summary judgment seeking specific performance of the oral agreement. The moving party must show proof of entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562). The agreement alleged by plaintiffs was that they were entitled to conveyance of title "upon our qualifying for a mortgage and repaying them the money they paid toward the down payment and closing costs plus one dollar.” In the absence of a showing that they qualified for a mortgage, plaintiffs failed to establish that they were able to tender performance (see, Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997). (Appeal from order of Supreme Court, Erie County, Flaherty, J. — summary judgment.) Present — Denman, J. P., Boomer, Pine, Balio and Davis, JJ.  