D'Abreau v. Smith

Appellate Division of the Supreme Court of New York

D'Abreau v. Smith

262 A.D.2d 442, 693 N.Y.S.2d 57, 1999 N.Y. App. Div. LEXIS 6645

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

DecidedJune 14, 1999

StatusPublished

This text of 262 A.D.2d 442 (D'Abreau v. Smith) 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

D'Abreau v. Smith, 262 A.D.2d 442, 693 N.Y.S.2d 57, 1999 N.Y. App. Div. LEXIS 6645 (N.Y. Ct. App. 1999).

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Opinion

—In an action to recover a down payment given under a contract for the sale of real property, the defendant Edward E. Smith appeals from a judgment of the Supreme Court, Kings County (Garson, J.), entered August 12, 1998, which, after a nonjury trial, is in favor of the plaintiffs and against him in the principal amount of $10,000.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly determined that the appellant’s four-year delay in obtaining the certificate of occupancy was unreasonable, and that the plaintiffs were entitled to a return of the downpayment. There was no evidence that the appellant demanded that the plaintiffs perform pursuant to the contract once the defendant obtained a certificate of occupancy, and there was no evidence of an anticipatory breach by the plaintiffs (see, D’Abreau v Smith, 240 AD2d 616). Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.

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—In an action to recover a down payment given under a contract for the sale of real property, the defendant Edward E. Smith appeals from a judgment of the Supreme Court, Kings County (Garson, J.), entered August 12, 1998, which, after a nonjury trial, is in favor of the plaintiffs and against him in the principal amount of $10,000.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly determined that the appellant’s four-year delay in obtaining the certificate of occupancy was unreasonable, and that the plaintiffs were entitled to a return of the downpayment. There was no evidence that the appellant demanded that the plaintiffs perform pursuant to the contract once the defendant obtained a certificate of occupancy, and there was no evidence of an anticipatory breach by the plaintiffs (see, D’Abreau v Smith, 240 AD2d 616). Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.

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Bluebook (online)

262 A.D.2d 442, 693 N.Y.S.2d 57, 1999 N.Y. App. Div. LEXIS 6645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dabreau-v-smith-nyappdiv-1999.

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