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Real Property Law

BY ljnstaff
May 02, 2017

Seller Entitled to Retain Breaching Buyer's Deposit Even if Breach Did Not Harm Seller Pizzurro v. Guarino
NYLJ 2/10/17, p. 32, col. 3
AppDiv, Second Dept.
(memorandum opinion)

In an action by seller against contract vendee to retain contract vendee's deposit, seller appealed from Supreme Court's grant of summary judgment to contract vendee. The Appellate Division modified, holding that seller is entitled to retain a breaching contract vendee's deposit even when seller has not been injured, but observing that in this case, questions of fact remained about whether contract vendee had breached.

When seller contracted to sell the subject property to contract vendee, the latter made a down payment of $30,000, which was less than 10% of the purchase price. The contract included a no liquidated damages provision. The parties never closed on the sale, and seller resold the property to another purchaser for a higher price. Seller then brought this action to retain the down payment. Supreme Court awarded summary judgment to contract vendee and directed seller to return the down payment. Seller appealed.

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