Engelhardt v. Mcginnis
| Decision Date | 15 December 2003 |
| Docket Number | 2003-10759.,2002-09100. |
| Citation | 2 A.D.3d 572,2003 NY Slip Op 19448,769 N.Y.S.2d 297 |
| Parties | GEORGE C. ENGELHARDT, Appellant, v. PETER C. McGINNIS et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The defendants made a prima facie showing of entitlement to summary judgment dismissing the complaint by demonstrating that they were ready, willing, and able to perform on the law day and that the plaintiff failed to appear at the time and place set by the defendants for the closing. In response, the plaintiff failed to show the existence of a triable issue of fact. Accordingly, the defendants were entitled to retain the down payment as liquidated damages in accordance with paragraph 24 of the contract of sale (see Cohen v Cerier, 243 AD2d 670, 671-672 [1997]; Goller Place Corp. v Cacase, 251 AD2d 287, 288 [1998]).
Although the defendant Peter C. McGinnis improperly withdrew a portion of the plaintiff's downpayment that he was holding in escrow the day before the declared date of closing, there is no evidence that he ever intended to forego his obligation under the contract as required for a claim of anticipatory repudiation (see generally 9 Corbin on Contracts § 959, at 756 [interim ed]; 11 Corbin on Contracts § 1053, at 266 [interim ed]; Matter of Express Indus. & Term....
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