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

CHASE INVESTMENTS, LTD., Appellant, v. William J. KENT III, et al., Respondents.

Decided: July 31, 2000

CORNELIUS J. O'BRIEN, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, LEO F. McGINITY, and NANCY E. SMITH, JJ. Franklin C. Hyman, P.C., Garden City, N.Y., for appellant. Dennis O'Doherty, Jr., Sayville, N.Y., for respondents.

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winick, J.), dated November 17, 1999, which granted the defendants' motion for summary judgment dismissing the complaint and for summary judgment on their first counterclaim, and denied its cross motion for summary judgment.

ORDERED that the order is affirmed, with costs.

The plaintiff entered into a contract to purchase certain real property from the defendant.   The contract was conditioned upon the plaintiff obtaining a certain variance.   In addition, the contract provided that in the event the variance was not obtained, or the variance conflicted with the intent of the contract, the plaintiff could cancel the contract within a certain period of time.   If the option to cancel was not timely exercised it would be waived.   When the intended variance was not obtained, the plaintiff failed to exercise the option to cancel the contract and failed to close title.   Under these circumstances, we agree with the Supreme Court that the defendants were entitled to retain the down payment as liquidated damages (see, Maxton Bldrs. v. Lo Galbo, 68 N.Y.2d 373, 509 N.Y.S.2d 507, 502 N.E.2d 184), and they were properly awarded summary judgment.


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