Kessel Brent Corp. v. Benderson Property Development, Inc.

45 A.D.3d 1323, 845 N.Y.S.2d 633

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2007
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Oneida County (John W. Grow, J.), entered September 7, 2006 in a breach of contract action. The order granted the motion of defendant for summary judgment dismissing the complaint and for judgment on its counterclaim and denied plaintiffs’ cross motion for summary judgment on the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiffs commenced this action seeking damages arising from defendant’s alleged breach of the parties’ agreement pursuant to which defendant was to purchase real property from plaintiff. Supreme Court properly granted the motion of defendant for summary judgment dismissing the complaint and for judgment on its counterclaim seeking the return of its deposit, and the court properly denied plaintiffs’ cross motion seeking summary judgment on the complaint. Defendant established that the agreement automatically terminated pursuant to paragraph 6.1 and, as a result, defendant is released from any liability under the agreement and is entitled to the return of its deposit. Plaintiffs’ submissions in opposition to the motion fail to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, P.J., Gorski, Lunn, Peradotto and Green, JJ.