Opinion
April 12, 1994
Appeal from the Supreme Court, Nassau County (Angelo D. Roncallo, J.).
We agree with the IAS Court that plaintiffs must be deemed to have approved defendant seller's proposed changes to their condominium unit because of their failure to give timely written notice of disapproval as required by paragraph 15 of the purchase agreement, and that their failure to take title thus constituted a default entitling defendants to damages. Defendants were not precluded from seeking actual damages since, under paragraph 6 of the purchase agreement, retention of the down payment as liquidated damages was but an option of seller. We also agree with the IAS Court that defendants made a prima facie showing of the amount of their damages, and that in response plaintiffs failed to produce evidentiary proof in admissible form sufficient to raise any issue of fact (see, Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065).
Concur — Sullivan, J.P., Asch, Nardelli and Tom, JJ.