GILLETTE v. MEYERS (2007)

Appeals (1) from an order of the Supreme Court (Coccoma, J.), entered November 8, 2006 in Otsego County, which granted plaintiffs' motion for summary judgment, and (2) from the judgment entered thereon.

On June 4, 2006, plaintiffs, as sellers, and defendants, as purchasers, entered into a contract for the sale of real property with defendants tendering a $10,000 check for the down payment.   Thereafter, however, defendants stopped payment on the check and defendant Jeremy Meyers faxed plaintiffs' brokerage agency a letter notifying it that he was withdrawing his “offer.”   No explanation was given in this letter.   Plaintiffs commenced this action to recover the $10,000 as liquidated damages for defendants' breach of contract.   At issue is an order and judgment of Supreme Court granting plaintiffs summary judgment.   We affirm.

 It is well-settled law “that a vendee who defaults on a real estate contract without lawful excuse[ ] cannot recover the down payment” (Maxton Bldrs. v. Lo Galbo, 68 N.Y.2d 373, 378, 509 N.Y.S.2d 507, 502 N.E.2d 184 [1986];  accord Cipriano v. Glen Cove Lodge # 1458, B.P.O.E., 1 N.Y.3d 53, 62, 769 N.Y.S.2d 168, 801 N.E.2d 388 [2003];  Lawrence v. Miller, 86 N.Y. 131 [1881] ).   Upon our review of the record, we find that defendants breached the purchase contract and proffered no legally cognizable excuse for doing so (see Di Scipio v. Sullivan, 30 A.D.3d 660, 661, 816 N.Y.S.2d 576 [2006];  Collar City Partnership I v. Redemption Church of Christ of Apostolic Faith, 235 A.D.2d 665, 666-667, 651 N.Y.S.2d 729 [1997], lv. denied 90 N.Y.2d 803, 661 N.Y.S.2d 179, 683 N.E.2d 1053 [1997];  Barton v. Lerman, 233 A.D.2d 555, 556, 649 N.Y.S.2d 107 [1996];  Korabel v. Natoli, 210 A.D.2d 620, 621-622, 619 N.Y.S.2d 833 [1994], appeal dismissed, lv. denied 85 N.Y.2d 889, 626 N.Y.S.2d 753, 650 N.E.2d 411 [1995] ).   While defendants claim that the agreement itself and actual cashing of their down payment check were contingent upon their physical inspection of the property, the contract contains no reference to any such condition (compare Bossert v. Fratalone, 28 A.D.3d 852, 853, 813 N.Y.S.2d 791 [2006] ).   Thus, their conduct in stopping payment on the check was a wrongful refusal to perform entitling plaintiffs to recover the down payment as liquidated damages (see Korabel v. Natoli, supra ).   Finally, while, as noted by defendants, the contract contained an attorney approval clause, this provision required their attorney to notify plaintiffs' broker of his disapproval of the agreement in writing within seven days of its acceptance.   No such written disapproval within this specified time period is contained in the record.   Since defendants did not adequately exercise their right to terminate under this provision, their refusal to perform constituted a breach (see Maxton Bldrs. v. Lo Galbo, supra at 377-378, 509 N.Y.S.2d 507, 502 N.E.2d 184;  CFJ Assoc. of N.Y. v. Hanson Indus., 294 A.D.2d 772, 775, 742 N.Y.S.2d 433 [2002] ).

ORDERED that the order and judgment are affirmed, without costs.

CARPINELLO, J.

MERCURE, J.P., SPAIN, MUGGLIN and KANE, JJ., concur.