Is Judiciary Law § 487 a favorite flavor in litigation right now?  It sometimes seems that with its general acceptance under Amalfitano  some people throw it in to an otherwise unremarkable case, somewhat willy-nilly.  Shi v Alexandratos is an example. 2016 NY Slip Op 01560 Decided on March 3, 2016 Appellate Division, First Department.  Here, buyer in a real estate transaction loses the down-payment, and tries to recoup from the attorney escrow agent.

“The residential contract of sale entered into between plaintiff and defendants Panagis Alexandratos and Carol Alexandratos provided that, if plaintiff did not receive a commitment for a first mortgage loan from an institutional lender on or before the “Commitment Date,” he “may cancel this contract by giving Notice to Seller within 5 business days after the Commitment Date.” It is undisputed that plaintiff failed to give the Alexandratoses notice of cancellation within five business days after the date on which the extension period he had requested and been granted expired. Plaintiff’s argument that the mortgage contingency clauses of the contract constituted a condition precedent to his purchase of the Alexandratoses’ house is belied by the contract language and by plaintiff’s own conduct in requesting an extension of the mortgage contingency date before the initial 60-day “Commitment Date” term expired (see Regal Realty Servs., LLC v 2590 Frisby, LLC, 62 AD3d 498 [1st Dept 2009]).

Plaintiff’s equitable restitution cause of action is barred by the existence of the contract of sale (see IIG Capital LLC v Archipelago, L.L.C., 36 AD3d 401, 404-405 [1st Dept 2007]).

Plaintiff’s causes of action against defendant Triades for breach of fiduciary duty and violation of Judiciary Law § 487 were correctly dismissed since documentary evidence established that Triades, as escrow agent, handled the down payment in accordance with the contract’s escrow terms (see Carter Fin. Corp. v Atlantic Med. Mgt., 268 AD2d 233 [1st Dept 2000], lv denied 94 NY2d 764 [2000]). We have considered plaintiff’s remaining arguments and find them unavailing.”