¶1Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered August 28, 2009 in a breach of contract action. The order, insofar as appealed from, denied that part of the motion of plaintiffs seeking permission to pay certain escrow funds into court and granted that part of the cross motion of defendant seeking to release those funds to its counsel.
¶2It is hereby ordered that the order so appealed from is affirmed without costs.
¶3Memorandum: Plaintiffs appeal from an order denying that part of their motion to direct the payment of $100,000 in escrow funds into Supreme Court and granting that part of the cross motion of defendant seeking to release those funds to its counsel. We affirm. We conclude that the escrow account was established pursuant to an agreement between the parties and *1074that the funds were intended to be a deposit by defendant pending the negotiation of terms for the purchase of the corporation owned by plaintiffs (cf Rock Oak Estates v Katahdin Corp. [appeal No. 2], 280 AD2d 960, 961-962 [2001]). Inasmuch as the record establishes that the parties were unable to reach an agreement on the terms of the sale, defendant is entitled to the return of the deposit (see Fumerelle v Performance Rides, 188 AD2d 1014 [1992]).
¶4All concur except Smith, J.E, who dissents and votes to reverse the order insofar as appealed from in accordance with the following memorandum.