Opinion
March 4, 1974
In an action by vendees, inter alia, for specific performance of a contract to sell real property, (1) defendants Lazaroff and Lipsker appeal from a judgment of the Supreme Court, Kings County, dated December 12, 1972 and made after a nonjury trial, which, inter alia, directed specific performance of the contract and (2) plaintiffs cross-appeal from the judgment, except the portion thereof which directed specific performance. Judgment modified, on the law and facts, by (1) striking the seventh and eighth decretal paragraphs thereof, which (a) granted plaintiffs a price abatement if possession of the property not be delivered vacant and (b) granted plaintiffs a counsel fee award against appellants, and (2) substituting in place of the seventh decretal paragraph a provision directing that (a) at the closing of title $3,500 of the total purchase price be deposited by plaintiffs with the clerk of the trial court, (b) the Justice who tried the case shall conduct a hearing on the issues of whether the premises were delivered vacant and whether the premises have deteriorated between the time title should have closed and the time it did close and any other questions arising in connection with said issues and (c) if the Justice finds in the affirmative as to either of said issues, or both, he shall determine the amount of abatement that should be allowed to plaintiffs and make an amended judgment in accordance therewith, which shall include a provision directing the appropriate disbursements of the said $3,500 deposit with the clerk of the trial court. As so modified, judgment affirmed, with costs to plaintiffs. In our opinion, specific performance was properly decreed in this case and, in view of appellants' conduct, the foregoing modification with regard to abatement is fully warranted. The legal expenses for the prosecution of this action were improperly awarded plaintiffs ( Klein v. Sharp, 41 A.D.2d 926) and should be deleted from the judgment. Martuscello, Acting P.J., Shapiro, Christ, Benjamin and Munder, JJ., concur.