Zellner v. Tarnell

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

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 their 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.