Orea v. D'Auria

an action to recover an $18,000 down payment made pursuant to a contract of sale of real property, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Kings County (I. Aronin, J.), dated October 12, 1988, which granted defendants’ motion for summary judgment dismissing the complaint. Ordered that the order and judgment is affirmed, with costs. The plaintiffs, who had contracted to purchase a parcel of land with a home built upon it from the defendants, sought in this action to recover their $18,000 down payment which was retained by the defendants after the plaintiffs failed to appear at three scheduled closings. Where, as here, a buyer has been given adequate opportunity to perform under a contract for the sale and purchase of real property and fails to do so, the seller may hold him in default (see, Shannon v Simon, 128 AD2d 859). Where a purchaser defaults under an agreement to purchase real property, the seller may retain the down payment paid upon the execution of the agreement (Maxton Bldrs. v Lo Galbo, 113 AD2d 923, affd 68 NY2d 373; accord, Levine v Trattner, 130 AD2d 462). As it does not appear that there are any questions of fact to be tried, summary judgment was properly granted to the defendants. Thompson, J. P., Brown, Rubin and Eiber, JJ., concur.