Lieberman v. Larkin

45 A.D.2d 965, 359 N.Y.S.2d 347, 1974 N.Y. App. Div. LEXIS 4108

Opinion

In an action by vendees to recover their down payment and damages for breach of a contract to sell real property, defendant appeals from an order of the Supreme Court, Dutchess County, dated October 3, 1973, which granted plaintiffs’ motion for summary judgment. Order modified by striking therefrom the following: “ The Clerk is directed to place this action on the inquest calendar for assesment of damages, subject to the deposition of the Justice presiding”, and by inserting in lieu thereof a provision that all questions of damages are to be decided following a full adversary trial. As so modified, order affirmed, without costs. We agree that summary judgment was properly granted as to the question of liability only. We do not pass upon the question of damages, which should be decided only after a full adversary trial and not an inquest (CPLR 3212, subd. [e]). Hopkins, Acting P. J., Martuscello, Latham, Brennan and Benjamin, JJ., concur.