Hauppauge Country Club Associates v. Kabro of Hauppauge, Inc.

226 A.D.2d 186, 640 N.Y.S.2d 529, 1996 N.Y. App. Div. LEXIS 3762

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 1996
• Status: Published

Opinion

Judgment, Supreme Court, Suffolk County (Thomas Stark, J.), entered June 16, 1995, which, after a nonjury trial, decreed that plaintiff is entitled to retain the real estate contract deposit of $2,000,000 and dismissed defendant’s counterclaims, unanimously affirmed, with costs. Appeal from the order of the same court and Justice entered thé same date, approving and settling plaintiff’s proposed judgment, unanimously dismissed, without costs, as subsumed within the appeal from the final judgment.

The trial court’s findings, that defendant did not expend reasonable and diligent efforts to obtain final approvals for its proposed golf course condominium project by the contract deadline date, resting as they did on the credibility of the witnesses and evaluation of the documentary evidence, are to be accorded great weight (Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d 203, 210), and we decline to disturb the fact finder’s determination. Indeed, the testimony and exhibits support the trial court’s conclusions that defendant did not go "somewhat beyond a mere good-faith effort” (Blask v Miller, 186 AD2d 958, 959), and use due diligence in promptly pursuing all applications for final map approval. Nor is plaintiff’s retention of the down payment to be viewed a forfeiture (Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Jones Realty Corp. v Frick, 144 AD2d 451, 452, lv dismissed 74 NY2d 715). We have considered defendant’s remaining arguments and find them to be without merit. Concur—Ellerin, J. P., Wallach, Kupferman, Williams and Mazzarelli, JJ.