Carmanco Holding Corp. v. Byre Associates

Appellate Division of the Supreme Court of New York

Carmanco Holding Corp. v. Byre Associates

38 A.D.2d 809, 328 N.Y.S.2d 907, 1972 N.Y. App. Div. LEXIS 5354

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

DecidedFebruary 17, 1972

StatusPublished

This text of 38 A.D.2d 809 (Carmanco Holding Corp. v. Byre Associates) 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

Carmanco Holding Corp. v. Byre Associates, 38 A.D.2d 809, 328 N.Y.S.2d 907, 1972 N.Y. App. Div. LEXIS 5354 (N.Y. Ct. App. 1972).

Pincite

Opinion

Orders, Supreme Court, New York County, entered July 8, 1971, whereby notices of pendency in actions to foreclose vendees’ liens were canceled, unanimously reversed, on the law, the motions denied, and each notice of pendency reinstated. Appellant shall recover of respondents one bill of $30 costs and disbursements of these appeals. Plaintiff-appellant, having made deposits with each of the two defendants-respondents in respect of two identical contracts for purchase of contiguous parcels of real estate, elected, after making further payments, not to take title. Plaintiff sought return of the additional payments [810]*810from both defendants, claiming that they were restricted by a contractual provision to the amount of the original deposits as liquidated damages. Rebuffed, plaintiff filed vendees’ liens (CPLR 6501) and instituted actions to foreclose them. Special Term granted a motion to vacate the liens, holding plaintiffs to have been in default under the contract. Not only did Special Term decide the ultimate question in the action, the merits not being then before the court, but, in this preliminary proceeding, vitiated the lien in derogation of CPLR 3002 (subd. [f]). Concur —Stevens, P. J., McGivern, Markewich, Nunez and Kupferman, JJ.

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Orders, Supreme Court, New York County, entered July 8, 1971, whereby notices of pendency in actions to foreclose vendees’ liens were canceled, unanimously reversed, on the law, the motions denied, and each notice of pendency reinstated. Appellant shall recover of respondents one bill of $30 costs and disbursements of these appeals. Plaintiff-appellant, having made deposits with each of the two defendants-respondents in respect of two identical contracts for purchase of contiguous parcels of real estate, elected, after making further payments, not to take title. Plaintiff sought return of the additional payments [810]*810from both defendants, claiming that they were restricted by a contractual provision to the amount of the original deposits as liquidated damages. Rebuffed, plaintiff filed vendees’ liens (CPLR 6501) and instituted actions to foreclose them. Special Term granted a motion to vacate the liens, holding plaintiffs to have been in default under the contract. Not only did Special Term decide the ultimate question in the action, the merits not being then before the court, but, in this preliminary proceeding, vitiated the lien in derogation of CPLR 3002 (subd. [f]). Concur —Stevens, P. J., McGivern, Markewich, Nunez and Kupferman, JJ.

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Bluebook (online)

38 A.D.2d 809, 328 N.Y.S.2d 907, 1972 N.Y. App. Div. LEXIS 5354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carmanco-holding-corp-v-byre-associates-nyappdiv-1972.