Steciw v. Tondo

Appellate Division of the Supreme Court of New York

Steciw v. Tondo

99 A.D.2d 648, 472 N.Y.S.2d 59, 1984 N.Y. App. Div. LEXIS 16889

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

DecidedJanuary 27, 1984

StatusPublished

This text of 99 A.D.2d 648 (Steciw v. Tondo) 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

Steciw v. Tondo, 99 A.D.2d 648, 472 N.Y.S.2d 59, 1984 N.Y. App. Div. LEXIS 16889 (N.Y. Ct. App. 1984).

Pincite

Opinion

Judgment unanimously modified and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Ontario County, for further proceedings, in accordance with the following memorandum: Defendant appeals from a summary judgment awarding plaintiff $4,785 in this action for breach of a contract in which defendant agreed to purchase real property from plaintiff for $32,000. We agree that defendant has presented no cognizable defense to the action and affirm as to liability. We hold, however, that the court erred in summarily awarding damages based on the difference between the contract price and the price for which plaintiff ultimately sold the property. It is unclear from the record whether the realtor’s commission, payable by plaintiff, was part of the contract price and whether such commission was ever paid. Also, there are questions with respect to whether plaintiff, who after the breach did not list the property with a realtor but sold it for $5,500 less than the contract price, fulfilled his duty to mitigate damages. The matter is remitted for an immediate trial on damages (see CPLR 3212, subd [c]). (Appeal from judgment of [649]*649Supreme Court, Ontario County, Pine, J. — summary judgment.) Present — Hancock, Jr., J. P., Callahan, Boomer, Green and Schnepp, JJ.

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Judgment unanimously modified and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Ontario County, for further proceedings, in accordance with the following memorandum: Defendant appeals from a summary judgment awarding plaintiff $4,785 in this action for breach of a contract in which defendant agreed to purchase real property from plaintiff for $32,000. We agree that defendant has presented no cognizable defense to the action and affirm as to liability. We hold, however, that the court erred in summarily awarding damages based on the difference between the contract price and the price for which plaintiff ultimately sold the property. It is unclear from the record whether the realtor’s commission, payable by plaintiff, was part of the contract price and whether such commission was ever paid. Also, there are questions with respect to whether plaintiff, who after the breach did not list the property with a realtor but sold it for $5,500 less than the contract price, fulfilled his duty to mitigate damages. The matter is remitted for an immediate trial on damages (see CPLR 3212, subd [c]). (Appeal from judgment of [649]*649Supreme Court, Ontario County, Pine, J. — summary judgment.) Present — Hancock, Jr., J. P., Callahan, Boomer, Green and Schnepp, JJ.

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Bluebook (online)

99 A.D.2d 648, 472 N.Y.S.2d 59, 1984 N.Y. App. Div. LEXIS 16889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steciw-v-tondo-nyappdiv-1984.