In an action, inter alia, to recover a down payment given under a contract for the sale of *450real property, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O’Connell, J.), dated September 15, 1999, which denied their motion for summary judgment on the complaint and granted the defendants’ cross motion for summary judgment dismissing the complaint.
Ordered that the order is modified by deleting therefrom the provision granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.
There are issues of fact requiring the denial of summary judgment. O’Brien, J. P., Ritter, Santucci and Schmidt, JJ., concur.