Gallant v. Staten Island Savings Bank

• Decision Date: 15 November 1999
• Citation: 266 A.D.2d 340,698 N.Y.S.2d 161
• Parties: STANLEY GALLANT et al., Appellants-Respondents,<BR>v.<BR>STATEN ISLAND SAVINGS BANK (SUCCESSOR TO GATEWAY SAVINGS BANK), Defendant and Third-Party Plaintiff-Respondent.<BR>DANIEL KORNBLUM et al., Third-Party Defendants-Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

266 A.D.2d 340

698 N.Y.S.2d 161

STANLEY GALLANT et al., Appellants-Respondents,

v. STATEN ISLAND SAVINGS BANK (SUCCESSOR TO GATEWAY SAVINGS BANK), Defendant and Third-Party Plaintiff-Respondent.DANIEL KORNBLUM et al., Third-Party Defendants-Respondents-Appellants.

Decided November 15, 1999.

Mangano, P. J., O'Brien, Ritter and Schmidt, JJ., concur.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is modified, on the law, by deleting the fourth decretal paragraph thereof and substituting therefor the following: "Ordered, Adjudged, And Decreed, that the plaintiffs, Stanley Gallant, residing at 1185 Park Avenue, Apt. 5L, New York, New York, 10028, and Jack Sternklar, residing at 221 Beach 137th Street, Belle Harbor, New York, 11694, do recover of Daniel Kornblum and Carol Kornblum, residing at 73 Aspinwall Street, Staten Island, New York, 10307, the sum of Two Hundred Seventy-Five Thousand ($275,000), plus costs and disbursements as fixed by the clerk in the sum of $1,230, plus interest thereon from June 1, 1995, the date of the default until present"; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from; and it is further,

Ordered that the plaintiffs are awarded one bill of costs payable by Daniel Kornblum and Carol Kornblum.

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). 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 court correctly granted the branch of the motion of the defendant Staten Island Savings Bank which was for partial summary judgment dismissing the fifth cause of the action in the complaint alleging a deceptive trade practice pursuant to General Business Law § 349 (see, Teller v Bill Hayes, Ltd., 213 AD2d 141).

The plaintiffs correctly argue that the proper amount of damages to be awarded to a vendor for a vendee's default on a real estate contract without lawful excuse is the down payment (see, Maxton Bldrs. v Lo Galbo, 68 NY2d 373). Since the down payment in the instant case was $275,000, the Supreme Court erred in awarding the plaintiffs damages for breach of contract in the principal sum of only $225,000. Accordingly, the judgment has been modified to the extent indicated.

The parties' remaining arguments...