Glen at Old Westbury, Inc. v. Day

— In an action to recover damages for breach of a contract for the sale of real property, the defendant appeals from a judgment of the Supreme Court, Nassau County (Levitt, J.), entered July 16, 1987, which, upon an order granting the plaintiff’s motion for summary judgment, is in favor of the plaintiff and against him in the principal sum of $17,000. The notice of appeal from the order dated June 10, 1987 is deemed a premature notice of appeal from the judgment (CPLR 5520 [c]). Ordered that the judgment is affirmed, with costs. On appeal the defendant does not take issue with Supreme Court’s finding that he unjustifiably stopped payment on a $17,000 down payment check tendered pursuant to a contract for the purchase of realty, thereby breaching the contract in question. Nor did the defendant demonstrate that the down payment amount, which is less than 5% of the purchase price, exceeded the plaintiff’s actual damages (see, Maxton Bldrs. v Lo Galbo, 68 NY2d 373). Since the plaintiff would have been justified in retaining the down payment pursuant to the provisions of the contract (see, Woodwork Display Corp. v Plagakis, 137 AD2d 809, 814, lv denied 72 NY2d 806; Levine v Trattner, 130 AD2d 462), there is no basis for disturbing the [534] award of damages in an amount equal to the down payment (Maxton Bldrs. v Lo Galbo, supra). Mollen, P. J., Eiber, Kooper and Harwood, JJ., concur.