Badame v. Bock Enterprises, Inc.

— Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred by limiting defendant’s damages to 10% of the contract price. It is well settled that a vendor is entitled to retain the down payment of the defaulting purchaser, even if the down payment exceeds the vendor’s actual damages (see, Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Almima Partners v Gherardi, 177 AD2d 611; Alirkan v Garcia, 162 AD2d 571; Rho v Morningside In Purchase Assocs., 150 AD2d 355; Dmochowski v Rosati, 96 AD2d 718). We have examined the arguments raised by plaintiffs on their cross appeal and find them to be either unpreserved or without merit. (Appeals from Order of Supreme Court, Erie County, Fallon, J. — Breach of Contract.) Present — Green, J. P., Pine, Balio, Davis and Doerr, JJ.