Opinion
July 6, 1971
In this action by a vendee to rescind a contract to sell certain real property and for return of the moneys deposited on account of the purchase price, defendant appeals from an order of the Supreme Court, Queens County, dated August 10, 1970, which denied its motion for summary judgment. Order reversed, on the law, with $10 costs and disbursements, and motion granted. In a prior action ( Go-Re Realty v. City of New York) in the Civil Court of the City of New York, defendant obtained a judgment on February 17, 1966 directing specific performance of the contract which the vendee is now attempting to rescind. By decision published in the New York Law Journal on May 3, 1968 (p. 18, col. 2) the Appellate Term unanimously affirmed the judgment. While the appeal was pending the building on the property was vandalized in such a manner as to be materially destroyed. The judgment directing specific performance was res judicata that plaintiff had breached the contract. The destruction of the property took place after the breach. Because of this breach and plaintiff's further refusal to carry out the judgment directing specific performance, plaintiff is not entitled to a rescission of the contract or a return of the down payment. Hopkins, Acting P.J., Munder, Latham, Christ and Brennan, JJ., concur.