Opinion
July 22, 1993
Appeal from the Supreme Court, Albany County (Harris, J.).
On July 14, 1990 defendant entered into a contract to purchase plaintiffs' home for $312,000. Defendant did not appear to close the transaction on November 9, 1990 and was thereby in default. Plaintiffs immediately placed their property back on the market and in September 1991 they entered into a contract of sale for $241,000. They closed on that sale on October 24, 1991. Plaintiffs commenced this action against defendant and, following a nonjury trial, Supreme Court awarded plaintiffs damages in the amount of $72,508, consisting of the difference between the original contract price and the amount ultimately received for the property, together with the cost of utilities and moving expenses.
On this appeal defendant contends that Supreme Court erred in its calculation of damages by using the sale price of the property some 11 months later. We disagree. Ordinarily, "plaintiffs are entitled to the difference between the price established in their contract with defendant and the amount ultimately received for the property" (Binks v. Farooq, 178 A.D.2d 999, 1001, lv denied 80 N.Y.2d 752; see, Tator v. Salem, 81 A.D.2d 727; Cohen v. Kranz, 15 A.D.2d 938, affd 12 N.Y.2d 242) unless there is evidence that the fair market value at the time of the breach is otherwise (see, Webster v. Di Trapano, 114 A.D.2d 698). While it is true that defendant offered expert testimony of market value at the time of the breach in excess of the amount ultimately received, plaintiffs' expert offered contrary opinion evidence which created a credibility issue for determination by the trial court that we are loath to disturb (see generally, Colangione v. State of New York, 187 A.D.2d 844, 845). In short, we find ample evidence in the record to sustain Supreme Court's determination as to damages and, accordingly, affirm.
Weiss, P.J., Mikoll, Mahoney and Casey, JJ., concur. Ordered that the order is affirmed, with costs.