ABREAU v. SMITH (1999)

Supreme Court, Appellate Division, Second Department, New York.

Kenneth D'ABREAU, etc., et al., respondents, v. Edward E. SMITH, appellant, et al., defendant.

Decided: June 14, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ.

Lendsey H. Jones, New York, N.Y., for appellant. Salzman & Salzman, Brooklyn, N.Y. (Robert M. Salzman of counsel), for respondents.

In an action to recover a down payment given under a contract for the sale of real property, the defendant Edward E. Smith appeals from a judgment of the Supreme Court, Kings County (Garson, J.), entered August 12, 1998, which, after a nonjury trial, is in favor of the plaintiffs and against him in the principal amount of $10,000.

ORDERED that the judgment is affirmed, with costs.

The Supreme Court properly determined that the appellant's four-year delay in obtaining the certificate of occupancy was unreasonable, and that the plaintiffs were entitled to a return of the downpayment. There was no evidence that the appellant demanded that the plaintiffs perform pursuant to the contract once the defendant obtained a certificate of occupancy, and there was no evidence of an anticipatory breach by the plaintiffs (see, D'Abreau v. Smith, 240 A.D.2d 616, 659 N.Y.S.2d 503).

MEMORANDUM BY THE COURT.

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