The Appellate Division, Second Department has upheld a purchaser’s claim for a refund of a $560,000 downpayment made toward a real estate purchase, in Mineroff v. Lonergan.  The contract at issue contained a clause in which the sellers represented that the house was “free and clear of any mold or evidence of existing mold remediation….”  After the parties went into contract, the purchasers’ inspection revealed that there was mold in several rooms.  The purchasers canceled the contract and demanded a refund of the downpayment, but the sellers refused and commenced their own action claiming a right to retain the downpayment as liquidated damages, based on the theories that the mold clause only applied to “toxic” mold and that, if there was a mold problem, they were deprived of the right to “cure.”  After the Supreme Court had granted summary judgment to the purchasers, the sellers appealed.  The Appellate Division rejected both of the sellers’ arguments, finding that the contract required the premises to be free from “any” mold, not just toxic mold, and that the mold problem was an incurable one, because the contract prohibited not only mold, but mold remediation.