RYAN v. CORBETT (2008)

 When this case previously was before us on appeal, we determined, inter alia, that Supreme Court erred in denying that part of plaintiffs' cross motion for partial summary judgment on liability, based on defendant's breach of a contract to purchase a residence owned by plaintiffs (Ryan v. Corbett, 30 A.D.3d 1062, 815 N.Y.S.2d 855).   The court thereafter conducted a nonjury trial on damages, and defendant now appeals from a judgment awarding plaintiffs damages in the amount of $7,000.   We agree with defendant that the court erred in relying on the decision of the Third Department in Di Scipio v. Sullivan, 30 A.D.3d 677, 816 N.Y.S.2d 578 in determining the amount of damages.   In that case, the Third Department stated that “the measure of damages incurred as a result of a breach of a real estate contract is either the difference between the contract price and a subsequent lower sale price or, where no subsequent sale has occurred, the difference between the contract price and the market value of the real property at the time of breach” (id. at 677, 816 N.Y.S.2d 578).   Because there was a subsequent sale of the residence, the court in reliance on Di Scipio did not consider evidence of the market value of the property at the time of the breach, and it awarded plaintiffs the difference between the contract price and the price received upon the subsequent sale of the property.   We instead agree with the decision of the Third Department in a prior case, in which the court stated that the proper measure of damages is the difference between the contract price and the amount received upon the subsequent sale “unless there is evidence that the fair market value at the time of the breach is otherwise” (Matzkowitz v. Prince, 195 A.D.2d 842, 600 N.Y.S.2d 799, lv. denied 83 N.Y.2d 751, 611 N.Y.S.2d 133, 633 N.E.2d 488 [emphasis added];  see Webster v. Di Trapano, 114 A.D.2d 698, 494 N.Y.S.2d 550).   Although we thus agree with defendant that the court erred in failing to consider the testimony of her expert appraiser with respect to the fair market value at the time of the breach, we nevertheless conclude, upon our independent review of the record, that the expert's testimony did not establish “that the fair market value at the time of the breach [was] otherwise” (Matzkowitz, 195 A.D.2d 842, 600 N.Y.S.2d 799), i.e., it did not outweigh the evidence of value established by the subsequent sale of the property.   We therefore affirm the judgment.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: