Camperlino v. Dimovich Construction Corp.

—Judgment unanimously modified in the exercise of discretion and as modified affirmed without costs in accordance with the following Memorandum: The court erred in awarding plaintiff damages for lost profits based on defendants’ breach of contract for the sale of real property. Such damages are available for the failure to convey real property pursuant to a contract in cases of bad faith or willful disregard of the contract (see, BSL Dev. Corp. v Broad Cove, 178 AD2d 394, 395; Mokar Props. Corp. v Hall, 6 AD2d 536, 539; see also, 91 NY Jur 2d, Real Property Sales and Exchanges, § 188). Plaintiff asserted five causes of action in its amended complaint, including breach of contract, conspiracy to defraud, and unjust enrichment. Plaintiff sought and was granted summary judgment only on its cause of action for breach of contract. That cause of action alleged that defendants "refused” to convey the property pursuant to the contract; neither bad faith nor willful disregard of the contract was alleged. The judgment on appeal resulted from a hearing on 804 damages on that cause of action. Plaintiff is entitled only to any amount already paid on the purchase price, "together with necessary expenses incurred pursuant to the contract, such as costs for investigating title and reasonable attorney’s fees” (Mokar Props. Corp. v Hall, supra, at 539). Here, plaintiff’s president testified that, in reliance on the contract, and prior to September 23, 1987, the date on which plaintiff learned that the closing was cancelled, plaintiff spent $9,150.75 in attorney’s fees, $1,744.88 for soil testing and engineering services, and $7,000 for an application fee paid to the Town of Onondaga. We modify the judgment, therefore, to grant plaintiff damages of $17,895.63 plus interest at the statutory rate (see, CPLR 5004) from September 23, 1987, the date of the breach. (Appeal from Judgment of Supreme Court, Onondaga County, Hurlbutt, J. — Breach of Contract.) Present —Green, J. P., Pine, Fallon, Doerr and Davis, JJ.