Guariglia v. Caushaj

Guariglia v Caushaj (2019 NY Slip Op 08824) Guariglia v Caushaj 2019 NY Slip Op 08824 Decided on December 11, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 11, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. JOSEPH J. MALTESE COLLEEN D. DUFFY BETSY BARROS, JJ. 2016-11793 (Index No. 483/14) [*1]Edward Guariglia, et al., appellants, v Fillor Caushaj, etc., respondent, et al., defendant. Abrams Fensterman Fensterman Eisman Formato Ferrara Wolf & Carone, LLP, Brooklyn, NY (Mark J. Caruso of counsel), for appellants. Edmond J. Pryor, Bronx, NY, for respondent. DECISION & ORDER In an action to recover damages for breach of a contract for the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (Bernadette Bayne, J.), dated October 6, 2016. The order denied the plaintiffs' motion for summary judgment on the complaint and granted the cross motion of the defendant Fillor Caushaj for summary judgment dismissing the complaint insofar as asserted against him and directing the return of his down payment. ORDERED that the order is affirmed, with costs. The plaintiffs entered into a contract to sell a parcel of real property to the defendant Fillor Caushaj. Pursuant to the terms of the contract, Caushaj made a down payment in the sum of $130,000. The plaintiffs subsequently commenced this action, alleging that Caushaj had breached the contract and that they were entitled to retain the down payment as liquidated damages. The plaintiffs moved for summary judgment on the complaint, and Caushaj cross-moved for summary judgment dismissing the complaint insofar as asserted against him and directing the return of his down payment. In an order dated October 6, 2016, the Supreme Court denied the plaintiffs' motion and granted Caushaj's cross motion. The plaintiffs appeal. We agree with the Supreme Court's determination to deny the plaintiff's motion and grant Caushaj's cross motion. Caushaj established his prima facie entitlement to judgment as a matter of law by demonstrating that, on the facts presented, the contract allowed him to cancel the contract and demand the return of his down payment. In opposition, the plaintiffs failed to raise a triable issue of fact (see Salamone v Kaba Realty, LLC, 46 AD3d 659). The plaintiffs' remaining contention is without merit. DILLON, J.P., MALTESE, DUFFY and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court