Il Soon Park v. Links at North Hills

203 A.D.2d 100, 612 N.Y.S.2d 838

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 1994
• Status: Published

Opinion

—Judgment, Supreme Court, Nassau County (Angelo D. Roncallo, J.), entered July 14, 1993, in favor of defendants and against plaintiffs in the amount of $275,558.69, inclusive of interest and costs, and bringing up for review prior orders, same court and Justice, entered October 11, 1991, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint, and April 26, 1993, which, inter alia, granted defendants’ motion for summary judgment on their counterclaim, unanimously affirmed, without costs. The appeals from the orders are unanimously dismissed as subsumed within the appeal from the judgment, without costs.

We agree with the IAS Court that plaintiffs must be deemed to have approved defendant seller’s proposed changes to their condominium unit because of their failure to give timely written notice of disapproval as required by paragraph 15 of the purchase agreement, and that their failure to take title thus constituted a default entitling defendants to damages. Defendants were not precluded from seeking actual damages since, under paragraph 6 of the purchase agreement, retention of the down payment as liquidated damages was but an option of seller. We also agree with the IAS Court that defendants made a prima facie showing of the amount of their damages, and that in response plaintiffs failed to produce evidentiary proof in admissible form sufficient to raise any issue of fact (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Concur — Sullivan, J. P., Asch, Nardelli and Tom, JJ.