Rothenberg v. Lampert

Appellate Division of the Supreme Court of New York

Rothenberg v. Lampert

160 A.D.2d 986, 554 N.Y.S.2d 1016, 1990 N.Y. App. Div. LEXIS 5034

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

DecidedApril 30, 1990

StatusPublished

This text of 160 A.D.2d 986 (Rothenberg v. Lampert) 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

Rothenberg v. Lampert, 160 A.D.2d 986, 554 N.Y.S.2d 1016, 1990 N.Y. App. Div. LEXIS 5034 (N.Y. Ct. App. 1990).

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Opinion

In an action to recover damages for breach of a contract to purchase real property, the defendant buyers appeal from (1) an order of the Supreme Court, Rock-land County (Weiner, J.), dated November 3, 1988, which granted the plaintiffs’ motion for summary judgment and for dismissal of the answer and counterclaims and denied their cross motion for summary judgment, and (2) a judgment of said court dated March 8, 1989, which is in favor of the plaintiffs and against them in the principal sum of $48,000.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

We agree with the Supreme Court’s conclusion that the parties entered into a valid contract for the sale of the plaintiffs’ home. The contract was executed by the defendants on April 1, 1988 and delivered to the plaintiffs who executed it on April 4, 1988. No delivery of the contract from the plaintiffs to the defendants was required (see, 61 NY Jur 2d, Statute of Frauds, § 150). The contract was breached by the defendants on April 8, 1988 when they repudiated it and stopped payment on their check for the deposit. Since the contract provided for liquidated damages in the amount of the deposit in the event of default by the defendants, the plaintiffs are entitled to liquidated damages in the principal sum of $48,000, the amount of the deposit. Thompson, J. P., Brown, Kunzeman and Harwood, JJ., concur.

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In an action to recover damages for breach of a contract to purchase real property, the defendant buyers appeal from (1) an order of the Supreme Court, Rock-land County (Weiner, J.), dated November 3, 1988, which granted the plaintiffs’ motion for summary judgment and for dismissal of the answer and counterclaims and denied their cross motion for summary judgment, and (2) a judgment of said court dated March 8, 1989, which is in favor of the plaintiffs and against them in the principal sum of $48,000.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

We agree with the Supreme Court’s conclusion that the parties entered into a valid contract for the sale of the plaintiffs’ home. The contract was executed by the defendants on April 1, 1988 and delivered to the plaintiffs who executed it on April 4, 1988. No delivery of the contract from the plaintiffs to the defendants was required (see, 61 NY Jur 2d, Statute of Frauds, § 150). The contract was breached by the defendants on April 8, 1988 when they repudiated it and stopped payment on their check for the deposit. Since the contract provided for liquidated damages in the amount of the deposit in the event of default by the defendants, the plaintiffs are entitled to liquidated damages in the principal sum of $48,000, the amount of the deposit. Thompson, J. P., Brown, Kunzeman and Harwood, JJ., concur.

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Bluebook (online)

160 A.D.2d 986, 554 N.Y.S.2d 1016, 1990 N.Y. App. Div. LEXIS 5034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rothenberg-v-lampert-nyappdiv-1990.

Opinion

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