Matusik v. Emmerling

Appellate Division of the Supreme Court of New York

Matusik v. Emmerling

202 A.D.2d 944, 609 N.Y.S.2d 458, 1994 N.Y. App. Div. LEXIS 3040

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

DecidedMarch 31, 1994

StatusPublished

This text of 202 A.D.2d 944 (Matusik v. Emmerling) 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

Matusik v. Emmerling, 202 A.D.2d 944, 609 N.Y.S.2d 458, 1994 N.Y. App. Div. LEXIS 3040 (N.Y. Ct. App. 1994).

Pincite

Opinion

—Appeal from an order of the Supreme Court (Dier, J.), entered July 14, 1993 in Warren County, which granted defendant’s motion for summary judgment dismissing the complaint.

We find that defendant’s motion for summary judgment dismissing this action for specific performance was properly granted. The plain language of the parties’ contract for the conveyance of real property states that a retention by plaintiff of defendant’s deposit following a default by defendant constitutes the acceptance of liquidated damages and terminates the contract. Here, plaintiff admittedly failed to return defendant’s deposit and this election of remedies by her mandates the dismissal of this action as a matter of law.

Mikoll, J. P., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

—Appeal from an order of the Supreme Court (Dier, J.), entered July 14, 1993 in Warren County, which granted defendant’s motion for summary judgment dismissing the complaint.

We find that defendant’s motion for summary judgment dismissing this action for specific performance was properly granted. The plain language of the parties’ contract for the conveyance of real property states that a retention by plaintiff of defendant’s deposit following a default by defendant constitutes the acceptance of liquidated damages and terminates the contract. Here, plaintiff admittedly failed to return defendant’s deposit and this election of remedies by her mandates the dismissal of this action as a matter of law.

Mikoll, J. P., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

202 A.D.2d 944, 609 N.Y.S.2d 458, 1994 N.Y. App. Div. LEXIS 3040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matusik-v-emmerling-nyappdiv-1994.