Dutch v. Basile

Judgment unanimously affirmed with costs. Memorandum: Plaintiffs’ conduct amounted to an abandonment of their contract with Basile. Upon learning of the right of first refusal, plaintiffs submitted a new agreement to Basile. They never resubmitted the deposit which had been returned by Basile or made the required October 15 additional payment. They never demanded that Basile close on the agreement or made any effort to secure the necessary financing called for in the contract. After May 1983, plaintiffs contacted Basile only once, December 29, 1983, offering to negotiate a new agreement. A lis pendens was never filed, nor specific performance sought. Abandonment of a contract is a factual issue (see, Matter of Rothko, 43 NY2d 305, 324; Green v Doniger, 300 NY 238, 246), and, in this case, the record amply supports the trial court’s finding that plaintiffs’ conduct constitutes an abandonment of their contract with Basile. We have examined plaintiffs’ other contentions and find them to be without merit. (Appeal from Judgment of Supreme Court, Onondaga County, Auser, J.—Breach of Contract.) Present—Dillon, P. J., Doerr, Denman, Green and Lowery, JJ.