From Casetext: Smarter Legal Research

Camperlino v. Dimovich Construction Corp.

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 12, 1991
175 A.D.2d 595 (N.Y. App. Div. 1991)

Summary

upholding trial court's award of damages when specific performance was not possible because defendants no longer owned property at issue

Summary of this case from Barton Group, Inc. v. NCR Corp.

Opinion

July 12, 1991

Appeal from the Supreme Court, Onondaga County, Mordue, J.

Present — Doerr, J.P., Green, Pine, Lawton and Davis, JJ.


Order unanimously affirmed without costs. Memorandum: Defendant Sofia Dimovich abandoned an appeal from an order of Supreme Court, Onondaga County, entered August 17, 1988, granting partial summary judgment on plaintiff's first cause of action for breach of contract and directing specific performance. Judgment was never entered upon that order, specific performance never occurred, and specific performance is now impossible because a judgment foreclosing a mortgage has been entered and defendants no longer own the property. Plaintiff made a second motion for summary judgment, which resulted in an order striking defendants' amended answer and directing an assessment of money damages. Defendant Sofia Dimovich contends on this appeal from the second order that factual issues have been raised concerning the validity of the contract. The first order necessarily determined the validity of the contract and is law of the case (see generally, 1 Carmody-Wait 2d, N Y Prac § 2:64). The doctrine of election of remedies does not apply because specific performance and damages for breach of contract are not inconsistent, both being in affirmance of the contract (see, Judnick Realty Corp. v 32 W. 32nd St. Corp., 61 N.Y.2d 819, 823; see also, 2 Carmody-Wait 2d, N Y Prac § 10:1 et seq.).


Summaries of

Camperlino v. Dimovich Construction Corp.

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 12, 1991
175 A.D.2d 595 (N.Y. App. Div. 1991)

upholding trial court's award of damages when specific performance was not possible because defendants no longer owned property at issue

Summary of this case from Barton Group, Inc. v. NCR Corp.
Case details for

Camperlino v. Dimovich Construction Corp.

Case Details

Full title:CAMPERLINO AND FATTI BUILDERS, INC., Respondent, v. DIMOVICH CONSTRUCTION…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jul 12, 1991

Citations

175 A.D.2d 595 (N.Y. App. Div. 1991)
573 N.Y.S.2d 932

Citing Cases

Gottwald v. Sebert

See, Judnick Realty Corp. v 32 West 32nd Street Corp., 61 NY2d 819, 823 (1984) ("There is no inconsistency…

Barton Group, Inc. v. NCR Corp.

e, the damage remedy is ordinarily adequate.”). Indeed, each of the cases on which BGI relies involve unique…