NEW YORK CENTER FOR ESTHETIC LASER DENTISTRY v. VSLP UNITED LLC (2018)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered June 23, 2016, which granted defendants' motion for summary judgment dismissing plaintiffs' complaint seeking the return of a $72,500 down payment on the subject real property, and ordered that defendants are entitled to judgment in the amount of $101,000, plus interest, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered July 14, 2016, which declined to sign plaintiff's order to show cause seeking to reargue the June 23, 2016 order, unanimously dismissed, as taken from a nonappealable paper.

Plaintiff's appeal from the July 14, 2016 order must be dismissed as no appeal lies from an order declining to sign an order to show cause (see Naval v. American Arbitration Assn., 83 A.D.3d 423, 919 N.Y.S.2d 339 [1st Dept. 2011];  Nova v. Jerome Cluster 3, LLC, 46 A.D.3d 292, 847 N.Y.S.2d 182 [1st Dept. 2007] ).  Nevertheless, as plaintiff did file a notice of appeal from the order entered June 23, 2016, and the substance of plaintiff's arguments relate to that order, this appeal is deemed to be an appeal from that order.

On the merits, the court properly determined that plaintiff had breached the contract for the purchase of certain real property by failing to seek a loan in the amount contemplated in the contingency clause of the contract.  Instead plaintiff sought a loan in a greater amount, and having done so, breached the contract as a matter of law (see Rice v. Buie, 259 A.D.2d 360, 687 N.Y.S.2d 52 [1st Dept. 1999];  Post v. Mengoni, 198 A.D.2d 487, 604 N.Y.S.2d 186 [2d Dept. 1993];  Silva v. Celella, 153 A.D.2d 847, 545 N.Y.S.2d 367 [2d Dept. 1989] ).  This is not a case where the transaction failed for reasons unrelated to plaintiff's loan application (cf. Gorgoglione v. Gillenson, 47 A.D.3d 472, 474, 849 N.Y.S.2d 526 [1st Dept. 2008];  Katz v. Simon, 216 A.D.2d 270, 627 N.Y.S.2d 763 [2d Dept. 1995];  Markovitz v. Kachian, 28 A.D.3d 358, 814 N.Y.S.2d 60 [1st Dept. 2006] ).  Moreover, plaintiff never made a good faith effort to obtain the financing, as he never sought a loan in the amount contemplated in the contract.

Finally, in determining defendant's damages, the court properly held that such damages were the difference between the contract sale price and its fair market value at the time of the breach (see White v. Farrell, 20 N.Y.3d 487, 499, 964 N.Y.S.2d 467, 987 N.E.2d 244 [2013] ).  The court also properly used the price at which the property sold less than two months after plaintiff's breach as the fair market value, as plaintiff has offered no evidence to demonstrate any other fair market value (see 12 Baker Hill Rd., Inc. v. Miranti, 130 A.D.3d 1425, 1427, 14 N.Y.S.3d 787 [3d Dept. 2015];  Ryan v. Corbett, 52 A.D.3d 1270, 1271, 859 N.Y.S.2d 808 [4th Dept. 2008] ).

We have considered plaintiff's remaining arguments and find them unavailing.