VEROLLA v. BEECHWOOD CARMEN BUILDING CORP (2007)

In an action, inter alia, to rescind a contract for the sale of real property, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), entered December 11, 2006, as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the defendant's motion for summary judgment dismissing the complaint is granted.

 The defendant established its prima facie entitlement to judgment as a matter of law by submitting the terms of the parties' real estate sale contract and evidence unequivocally demonstrating that the plaintiff defaulted thereunder.   Moreover, the plaintiff failed to raise a triable issue of fact in response, thus warranting the granting of the defendant's motion.   Accordingly, pursuant to settled case law and the express terms of the contract, the defendant was entitled to retain the monies deposited with it by the plaintiff pursuant to the contract (see Maxton Bldrs. v. Lo Galbo, 68 N.Y.2d 373, 509 N.Y.S.2d 507, 502 N.E.2d 184;  New Colony Homes, Inc. v. Long Is. Prop. Group, LLC, 21 A.D.3d 1072, 803 N.Y.S.2d 615;  Micciche v. Homes by Timbers, Inc., 18 A.D.3d 833, 796 N.Y.S.2d 628;  Hegner v. Reed, 2 A.D.3d 683, 770 N.Y.S.2d 87;  Ittleson v. Barnett, 304 A.D.2d 526, 758 N.Y.S.2d 360;  Collar City Partnership I v. Redemption Church of Christ of Apostolic Faith, 235 A.D.2d 665, 651 N.Y.S.2d 729).   Contrary to the determination of the Supreme Court, the mere fact that the amount retained by the defendant constituted approximately 14% of the contract price failed to raise a triable issue as to whether the parties' arm's length agreement provided for an unenforceable penalty or was the product of overreaching (see e.g. Uzan v. 845 UN Ltd. Partnership, 10 A.D.3d 230, 778 N.Y.S.2d 171;  Collar City Partnership I v. Redemption Church of Christ of Apostolic Faith, supra;  Vitolo v. O'Connor, 223 A.D.2d 762, 636 N.Y.S.2d 163;  Badame v. Bock Enters., 190 A.D.2d 1066, 593 N.Y.S.2d 384).