CALVERTON ASSOCIATES INC v. KEMPERMANN (1999)

In an action to recover damages for breach of a contract to purchase real property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered April 27, 1998, as granted the defendants' motion for summary judgment dismissing the complaint and directed the return of their $10,000 down payment.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff failed to show that it was able to convey marketable title to the defendants on the final day set by it for the closing.   It then breached its contract with the defendants by selling the subject property to a third party prior to setting a new closing date.   Under these circumstances, the Supreme Court properly granted the defendants' motion (see, Gargano v. Rubin, 200 A.D.2d 554, 606 N.Y.S.2d 314;  cf., Ilemar Corp. v. Krochmal, 58 A.D.2d 853, 396 N.Y.S.2d 676, affd. 44 N.Y.2d 702, 405 N.Y.S.2d 444, 376 N.E.2d 917).

The plaintiff's remaining contention is without merit.

MEMORANDUM BY THE COURT.