Webster v. Di Trapano
| Decision Date | 31 October 1985 |
| Citation | 114 A.D.2d 698,494 N.Y.S.2d 550 |
| Parties | George H. WEBSTER, Jr., Respondent, v. Vincent C. DI TRAPANO, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Getman, LaRaia & Getman (George H. Getman, of counsel), Ilion, for appellants.
Feury, Gozigian & Washburn (Philip L. Washburn, of counsel), Cooperstown, for respondent.
Before MAHONEY, P.J., and MAIN, CASEY, YESAWICH and HARVEY, JJ.
Appeal from a judgment of the Supreme Court in favor of plaintiff, entered July 26, 1983 in Otsego County, upon a decision of the court at Trial Term, (Lee, J.), without a jury.
On July 5, 1980, defendants entered into a contract to purchase plaintiff's home for $63,500. The closing was to be on or about August 15, 1980. The contract contained the following two conditions: first, if defendant Vincent Di Trapano failed to obtain employment at a local hospital by July 8, 1980, the contract was to be null and void; second, if a mortgage commitment was not forthcoming by July 25, 1980, defendants could cancel the contract by notifying plaintiff of their inability to acquire financing.
By letter dated July 9, 1980, the hospital informed defendant Vincent Di Trapano that he had secured the position contemplated and, on July 28, 1980, the bank issued defendants a letter of commitment for a $43,500 mortgage. The mortgage was contingent upon the sale of defendants' house in New Jersey. Defendants were unable to close on August 15, 1980 because of their inability to sell the New Jersey home and they did not know then when they might be able to close in the future. The bank's mortgage commitment expired on September 1, 1980. Shortly thereafter, plaintiff placed the real estate back on the market and finally sold it in August of 1981 for $55,000.
A nonjury trial of plaintiff's action to recover for breach of the contract of sale resulted in a damage award to plaintiff based on the difference between the contract price of $63,500 and the $55,000 price at which the house actually sold. Defendants' third-party complaint against the realtor was dismissed. Defendants appeal only from the adverse judgment in the main action.
The contention that defendants' breach was excusable by reason of the defense of impossibility of performance is untenable. Inability of a vendee to obtain funds essential for a closing constitutes a default where the sale "was not conditioned in any way upon the vendee's success in securing [such] necessary funds" (Evans v. Norris, 69 A.D.2d 829, 415 N.Y.S.2d 92). Here, when defendants, one of whom had considerable experience in buying residential property, executed the purchase agreement, they were fully aware that sale of the New Jersey residence had to occur for them to be able to perform the terms of the purchase agreement, yet neglected to provide therein for this contingency. When the New...
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Little v. Cooke
...between the contract price and the saleable or market value at the time of the breach.") (emphasis added); Webster v. Di Trapano, 114 A.D.2d 698, 494 N.Y.S.2d 550, 551 (1985) ("[T]he proper measure of damages is the difference between the contract price and the market value of the real prop......
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White v. Farrell
...$25,000 down payment. He adopted as the measure of the Farrells' actual damages the standard stated in Webster v. Di Trapano, 114 A.D.2d 698, 699, 494 N.Y.S.2d 550 (3d Dept.1985)—i.e., “the difference between the contract price and the market value of the real property at the time of the br......
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Lucente v. Intern. Business Machines Corp.
...omitted). New York courts have applied this rule to breach of contract for real estate, see Webster v. Di Trapano, 114 A.D.2d 698, 699, 494 N.Y.S.2d 550, 551 (App.Div.3d Dep't 1985) (contract price of real estate $63,500, value at time of breach $57,500, sold eleven months later for $55,000......
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