Zellner v. Tarnell

Appellate Division of the Supreme Court of New York

Zellner v. Tarnell

54 A.D.3d 329, 861 N.Y.S.2d 598

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

DecidedAugust 5, 2008

StatusPublished

Cited by9 cases

This text of 54 A.D.3d 329 (Zellner v. Tarnell) 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

Zellner v. Tarnell, 54 A.D.3d 329, 861 N.Y.S.2d 598 (N.Y. Ct. App. 2008).

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Opinion

In an action, inter alia, to recover damages for breach of contract for the sale of real property, the defendants appeal from an order of the Supreme Court, Westchester County (Loehr, J.), dated November 15, 2007, which granted the plaintiffs’ motion, in effect, for summary judgment awarding them the down payment as liquidated damages under the contract.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs motion, in effect, for summary judgment is denied.

The plaintiffs sellers failed to include a complete set of the pleadings and an affidavit in support of their motion for summary judgment, as required by CFLR 3212 (b). Accordingly, they were not entitled to summary judgment, and denial of [330]*330their motion was required (see Sendor v Chervin, 51 AD3d 1003 [2008]; Thompson v Foreign Cars Ctr., Inc., 40 AD3d 965 [2007]; Matsyuk v Konkalipos, 35 AD3d 675 [2006]).

In light of our determination, we need not reach the appellants’ remaining contentions. Spolzino, J.P., Fisher, Garni and Dickerson, JJ., concur.

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In an action, inter alia, to recover damages for breach of contract for the sale of real property, the defendants appeal from an order of the Supreme Court, Westchester County (Loehr, J.), dated November 15, 2007, which granted the plaintiffs’ motion, in effect, for summary judgment awarding them the down payment as liquidated damages under the contract.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs motion, in effect, for summary judgment is denied.

The plaintiffs sellers failed to include a complete set of the pleadings and an affidavit in support of their motion for summary judgment, as required by CFLR 3212 (b). Accordingly, they were not entitled to summary judgment, and denial of [330]*330their motion was required (see Sendor v Chervin, 51 AD3d 1003 [2008]; Thompson v Foreign Cars Ctr., Inc., 40 AD3d 965 [2007]; Matsyuk v Konkalipos, 35 AD3d 675 [2006]).

In light of our determination, we need not reach the appellants’ remaining contentions. Spolzino, J.P., Fisher, Garni and Dickerson, JJ., concur.

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Bluebook (online)

54 A.D.3d 329, 861 N.Y.S.2d 598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zellner-v-tarnell-nyappdiv-2008.

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