Rho v. Morningside in Purchase Associates

150 A.D.2d 355, 543 N.Y.S.2d 317, 1989 N.Y. App. Div. LEXIS 5661

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 1989
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from so much of an order of the Supreme Court, Westchester County (Gurahian, J.), dated April 13, 1987, as denied those branches of their cross motion which were to dismiss the first and second causes of action asserted in the complaint and for summary judgment on the third counterclaim.

Ordered that the order is reversed insofar as appealed from, on the law, and those branches of the defendants’ cross motion which were to dismiss the first and second causes of action asserted in the complaint and for summary judgment on the third counterclaim is granted, with costs.

The plaintiff purchasers failed to effectively cancel the contract of sale under its terms and, thus, their failure to appear at closing constituted a breach of that contract (see, Maxton Bldrs. v Lo Galbo, 68 NY2d 373). Moreover, pursuant to the terms of the contract, the defendant sellers were entitled to retain the entire down payment as liquidated damages, regardless of the amount of damages they actually suffered (see, Maxton Bldrs. v Lo Galbo, supra; Levine v Trattner, 130 AD2d 462). Thus, the court erred in denying the defendants’ motion to dismiss the complaint under CPLR 3211 (a) (1) and (7) and for summary judgment on the third counterclaim, pursuant to which they alleged entitlement to the down payment. Thompson, J. P., Bracken, Brown and Harwood, JJ., concur.