| Texter v Trotta |
| 2008 NY Slip Op 01137 [48 AD3d 455] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Raymond F. Texter, Respondent, v Michael Trotta,Appellant. |
—[*1]
In an action to recover damages for breach of a contract for the sale of real property, thedefendant appeals from (1) an order of the Supreme Court, Suffolk County (Whelan, J.), datedJanuary 2, 2007, which, inter alia, granted the plaintiff's motion for summary judgment on thecomplaint, and (2) a judgment of the same court dated January 24, 2007, which, upon the order,is in favor of the plaintiff and against him in the principal sum of $25,000.
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it isfurther,
Ordered that the judgment is affirmed, without costs or disbursements.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39NY2d 241 [1976]). The issues raised on the appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff made a prima facie showing of entitlement to judgment in the sum of $25,000,with proof that the parties entered into a contract pursuant to which the defendant agreed topurchase the plaintiff's real property for the sum of $250,000, and in accordance with thecontract, the defendant tendered a check for the down payment of $25,000 to the plaintiff'sattorney, which check was returned for insufficient funds (see Maxton Bldrs. v Lo Galbo,68 NY2d 373 [1986]; Daimon vFridman, 5 AD3d 426 [2004]; Korabel v Natoli, 210 AD2d 620 [1994]).[*2]
The defendant's contention that the plaintiff could notconvey good title to the premises was insufficient to raise an issue of fact as to the plaintiff'sentitlement to judgment for the amount of the down payment. "[I]n order to place a vendor ofrealty under a contract of sale in default for a claimed failure to provide clear title, the purchasernormally must first tender performance himself and demand good title [and] [t]ender ofperformance by a purchaser is excused only if the title defect is not curable" (Willard vMercer, 83 AD2d 656, 657 [1981], affd 58 NY2d 840 [1983]). Here, by his ownadmission, rather than tendering performance himself, and demanding that the plaintiff correctthe alleged defect in title in accordance with the terms of the contract, the defendant withdrew allof the money in the account on which the down payment check had been drawn causing it to bedishonored. This was a material breach of the contract, entitling the plaintiff to judgment forliquidated damages in the amount of the down payment, in accordance with the terms of thecontract (see Gillette v Meyers, 42AD3d 654 [2007]). Fisher, J.P., Lifson, Covello and McCarthy, JJ., concur.