Bavaro v. Spare Wheels, Inc.

Appellate Division of the Supreme Court of New York

Bavaro v. Spare Wheels, Inc.

209 A.D.2d 658, 624 N.Y.S.2d 835, 1994 N.Y. App. Div. LEXIS 11738

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 28, 1994

StatusPublished

This text of 209 A.D.2d 658 (Bavaro v. Spare Wheels, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bavaro v. Spare Wheels, Inc., 209 A.D.2d 658, 624 N.Y.S.2d 835, 1994 N.Y. App. Div. LEXIS 11738 (N.Y. Ct. App. 1994).

Pincite

Opinion

—In an action to recover damages for breach of contract and specific performance, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Brucia, J.), entered April 2, 1993, which granted the defendants’ motion for summary judgment dismissing the complaint, and denied the plaintiffs’ cross motion for judgment in their favor.

Ordered that the order is affirmed, with costs.

In moving for summary judgment, the defendants established that they contracted to sell the plaintiffs a new 1989 Ferrari F-40 for $275,000, and that the contract provided that in the event that the manufacturer did not deliver the car, the plaintiffs’ $50,000 deposit would be refunded. The defendants further established that the 1989 model was not available in the United States, and that the F-40 was first available in the United States in 1990. Accordingly, the defendants refunded the $50,000 to the plaintiffs. Because the plaintiffs failed to raise a triable issue of fact as to whether the contract was breached (see, Zuckerman v City of New York, 49 NY2d 557, 562-563), the Supreme Court properly dismissed the complaint. Mangano, P. J., Thompson, Copertino and Hart, JJ., concur.

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—In an action to recover damages for breach of contract and specific performance, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Brucia, J.), entered April 2, 1993, which granted the defendants’ motion for summary judgment dismissing the complaint, and denied the plaintiffs’ cross motion for judgment in their favor.

Ordered that the order is affirmed, with costs.

In moving for summary judgment, the defendants established that they contracted to sell the plaintiffs a new 1989 Ferrari F-40 for $275,000, and that the contract provided that in the event that the manufacturer did not deliver the car, the plaintiffs’ $50,000 deposit would be refunded. The defendants further established that the 1989 model was not available in the United States, and that the F-40 was first available in the United States in 1990. Accordingly, the defendants refunded the $50,000 to the plaintiffs. Because the plaintiffs failed to raise a triable issue of fact as to whether the contract was breached (see, Zuckerman v City of New York, 49 NY2d 557, 562-563), the Supreme Court properly dismissed the complaint. Mangano, P. J., Thompson, Copertino and Hart, JJ., concur.

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Bluebook (online)

209 A.D.2d 658, 624 N.Y.S.2d 835, 1994 N.Y. App. Div. LEXIS 11738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bavaro-v-spare-wheels-inc-nyappdiv-1994.

Opinion

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