PLAINTIFFS BREACHED THE CONTRACT TO PURCHASE THE HOME BUILT BY DEFENDANTS BY CLEARLY INDICATING THEY COULD NOT GO THROUGH WITH THE PURCHASE (ANTICIPATORY REPUDIATION); HOWEVER, DEFENDANTS WERE NOT ENTITLED TO THE FULL AMOUNT PLAINTIFFS HAD ALREADY PAID DEFENDANTS, OVER $220,000, AS DAMAGES FOR THE BREACH, DAMAGES TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that plaintiffs breached the contract to purchase the home built by defendants by a clear expression that they did not intend to go through with the purchase (anticipatory repudiation). The plaintiffs had paid defendants about $220,000 toward the purchase price of about $322,000. After the plaintiffs repudiated the contract the builder sold the property to his daughter fore $269,000. Supreme Court allowed the defendants to keep the entire $220,000 paid by plaintiffs as damages. The Third Department determined the damages were excessive in ordered a trial to determine the appropriate amount of damages:

Having determined that plaintiffs breached the contract, the issue distills to whether Supreme Court correctly determined that, as a result thereof, they forfeited, as a matter of law, the $222,241 in payments made to defendants prior to their cancellation of the contract. Defendants argue that we must apply the well-settled rule set forth by the Court of Appeals over a century ago in Lawrence v Miller (86 NY 131 [1881]), which was later reaffirmed in Maxton Bldrs. v Lo Galbo (68 NY2d 373 [1986]), “that a vendee who defaults on a real estate contract without lawful excuse[ ] cannot recover his or her down payment” … . However, we find that forfeiture of the payments made by plaintiffs in this case, which constitute approximately 69% of the total contract amount, represents, on its face, a damages award disproportionally higher than the actual damages incurred by defendants … , such that defendants have failed to establish, as a matter of law, their entitlement to a damages award equivalent to all payments made by plaintiffs  … . Accordingly, Supreme Court should have denied this portion of defendants’ motion. As a result, a trial is required to determine the appropriate amount of defendants’ damages. Burns v Reiser Bros., Inc., 2019 NY Slip Op 04522, Third Dept 6-6-19