Opinion
November 18, 1991
Appeal from the Supreme Court, Nassau County (Murphy, J.).
Ordered that the order is affirmed, with costs.
Contrary to the defendant's contention, where a purchaser is in breach of a contract for the sale of real property, the seller is not limited to actual damages and can recover the entire down payment from the purchaser (see, Maxton Bldrs. v. Lo Galbo, 68 N.Y.2d 373; Palmiotto v. Mark, 145 A.D.2d 549). In the case at bar, the $27,500 claimed by the plaintiff in the first cause of action represented the second half of the down payment which was payable on the seller's obtaining a building permit, the first half having already been paid on execution of the contract. The record indicates that the seller did obtain the building permit as required by the contract. Therefore the court properly awarded the plaintiff the principal sum of $27,500, upon the unrebutted showing that the defendant breached the underlying contract of sale.
We additionally conclude that the Supreme Court properly ordered a trial to determine the amount of additional damages to which the plaintiff is entitled, if any (see, DeJong v Mandelbaum, 122 A.D.2d 772, 775; see also, Lotito v. Mazzeo, 132 A.D.2d 650; Colonial Diversified v. Assured Holding Corp., 71 A.D.2d 1011). Mangano, P.J., Kunzeman, Sullivan and Ritter, JJ., concur.