| Pinhas v Comperchio |
| 2008 NY Slip Op 04068 [50 AD3d 1117] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Haim Pinhas et al., Appellants, v Pauline Comperchio etal., Respondents. |
—[*1] Caruso, Caruso & Branda, P.C., Brooklyn, N.Y. (Mark J. Caruso and Grace M. Borrino ofcounsel), for respondents.
In an action to recover damages for breach of contract for the sale of real property, theplaintiffs appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated October16, 2006, which denied their cross motion for summary judgment and granted the defendants'motion for summary judgment dismissing the complaint and for judgment on the counterclaim ofthe defendant Pauline Comperchio for the return of a down payment in the principal sum of$52,500.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the defendants' motion for summary judgmentdismissing the complaint and for judgment on the counterclaim of the defendant PaulineComperchio (hereinafter the seller) for the amount of the down payment made by the plaintiffsHaim Pinhas and Margaliy Laniado (hereinafter the purchasers). The seller established her primafacie entitlement to judgment as a matter of law that she was ready, willing, and able to performon the law day, while the purchasers failed to proceed with the closing (see Engelhardt v McGinnis, 2 AD3d572 [2003]). In response to this showing, the purchasers failed to raise a triable issue of factas to whether they tendered performance and permitted the seller an opportunity to cure anyalleged default (see Cohen v Kranz, 12 NY2d 242 [1963]; Hegner v Reed, 2 AD3d 683[2003]; R.C.P.S. Assoc. v Karam Devs., 258 AD2d 510 [1999]). Pursuant to the contractof sale, the seller is entitled to the amount of the down payment as liquidated damages. Rivera,J.P., Skelos, Santucci and Belen, JJ., concur.