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Guariglia v. Caushaj

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Dec 11, 2019
178 A.D.3d 776 (N.Y. App. Div. 2019)

Opinion

2016–11793 Index No. 483/14

12-11-2019

Edward GUARIGLIA, et al., Appellants, v. Fillor CAUSHAJ, etc., Respondent, et al., Defendant.

Abrams Fensterman Fensterman Eisman Formato Ferrara Wolf & Carone, LLP, Brooklyn, N.Y. (Mark J. Caruso of counsel), for appellants. Edmond J. Pryor, Bronx, NY, for respondent.


Abrams Fensterman Fensterman Eisman Formato Ferrara Wolf & Carone, LLP, Brooklyn, N.Y. (Mark J. Caruso of counsel), for appellants.

Edmond J. Pryor, Bronx, NY, for respondent.

MARK C. DILLON, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER In an action to recover damages for breach of a contract for the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (Bernadette Bayne, J.), dated October 6, 2016. The order denied the plaintiffs' motion for summary judgment on the complaint and granted the cross motion of the defendant Fillor Caushaj for summary judgment dismissing the complaint insofar as asserted against him and directing the return of his down payment.

ORDERED that the order is affirmed, with costs.

The plaintiffs entered into a contract to sell a parcel of real property to the defendant Fillor Caushaj. Pursuant to the terms of the contract, Caushaj made a down payment in the sum of $130,000. The plaintiffs subsequently commenced this action, alleging that Caushaj had breached the contract and that they were entitled to retain the down payment as liquidated damages. The plaintiffs moved for summary judgment on the complaint, and Caushaj cross-moved for summary judgment dismissing the complaint insofar as asserted against him and directing the return of his down payment. In an order dated October 6, 2016, the Supreme Court denied the plaintiffs' motion and granted Caushaj's cross motion. The plaintiffs appeal.

We agree with the Supreme Court's determination to deny the plaintiff's motion and grant Caushaj's cross motion. Caushaj established his prima facie entitlement to judgment as a matter of law by demonstrating that, on the facts presented, the contract allowed him to cancel the contract and demand the return of his down payment. In opposition, the plaintiffs failed to raise a triable issue of fact (see Salamone v. Kaba Realty, LLC, 46 A.D.3d 659, 846 N.Y.S.2d 586 ).

The plaintiffs' remaining contention is without merit.

DILLON, J.P., MALTESE, DUFFY and BARROS, JJ., concur.


Summaries of

Guariglia v. Caushaj

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Dec 11, 2019
178 A.D.3d 776 (N.Y. App. Div. 2019)
Case details for

Guariglia v. Caushaj

Case Details

Full title:Edward Guariglia, et al., appellants, v. Fillor Caushaj, etc., respondent…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Dec 11, 2019

Citations

178 A.D.3d 776 (N.Y. App. Div. 2019)
111 N.Y.S.3d 889
2019 N.Y. Slip Op. 8824