| Verolla v Beechwood Carmen Bldg. Corp. |
| 2007 NY Slip Op 06669 [43 AD3d 913] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Robert J. Verolla, Respondent, v Beechwood CarmenBuilding Corp., Appellant. |
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In an action, inter alia, to rescind a contract for the sale of real property, the defendantappeals, 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 judgmentdismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, and the defendant's motion for summary judgment dismissing the complaint isgranted.
The defendant established its prima facie entitlement to judgment as a matter of law bysubmitting the terms of the parties' real estate sale contract and evidence unequivocallydemonstrating that the plaintiff defaulted thereunder. Moreover, the plaintiff failed to raise atriable 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 defendantwas entitled to retain the monies deposited with it by the plaintiff pursuant to the contract (seeMaxton Bldrs. v Lo Galbo, 68 NY2d 373 [1986]; New Colony Homes, Inc. vLong Is. Prop. Group, LLC, 21 AD3d 1072 [2005]; Micciche v Homes byTimbers, Inc., 18 AD3d 833 [2005]; Hegner v Reed, 2 AD3d 683 [2003]; Ittleson v Barnett, 304AD2d 526 [2003]; Collar City Partnership I v Redemption Church of Christ of ApostolicFaith, 235 AD2d 665 [1997]). Contrary to the determination of the Supreme Court, the merefact that the amount retained by the defendant constituted approximately 14% of the contractprice failed to raise a triable issue as to whether the parties' arm's length agreement provided foran unenforceable penalty or was the product of overreaching (see e.g. Uzan v 845 UN Ltd. Partnership, 10 AD3d 230 [2004];Collar City [*2]Partnership I v Redemption Church of Christof Apostolic Faith, supra; Vitolo v O'Connor, 223 AD2d 762 [1996]; Badame vBock Enters., 190 AD2d 1066 [1993]). Miller, J.P., Mastro, Lifson and Carni, JJ., concur.