Opinion
Submitted May 5, 1999
June 14, 1999
In an action to recover a down payment given under a contract for the sale of real property, the defendant Edward E. Smith appeals from a judgment of the Supreme Court, Kings County (Garson, J.), entered August 12, 1998, which, after a nonjury trial, is in favor of the plaintiff and against him in the principal amount of $10,000.
Lendsey H. Jones, New York, N.Y., for appellant.
Salzman Salzman, Brooklyn, N.Y. (Robert M. Salzman of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The Supreme Court properly determined that the appellant's four-year delay in obtaining the certificate of occupancy was unreasonable, and that the plaintiff was entitled to a return of the down payment. There was no evidence that the appellant demanded that the plaintiff perform pursuant to the contract once the defendant obtained a certificate of occupancy, and there was no evidence of an anticipatory breach by the plaintiff ( see, D'Abreau v. Smith, 240 A.D.2d 616).