D'Abreau v. Smith — 262 A.D.2d 442

Majority

p. 442

Kenneth D’Abreau, Respondent, v Edward E. Smith, Appellant, et al., Defendant.

[693 NYS2d 57]

—In an action to recover a down payment given under a contract for the sale of real property, the defendant Edward E. Smith appeals from a judgment of the Supreme Court, Kings County (Garson, J.), entered August 12, 1998, which, after a nonjury trial, is in favor of the plaintiffs and against him in the principal amount of $10,000.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly determined that the appellant’s four-year delay in obtaining the certificate of occupancy was unreasonable, and that the plaintiffs were entitled to a return of the downpayment. There was no evidence that the appellant demanded that the plaintiffs perform pursuant to the contract once the defendant obtained a certificate of occupancy, and there was no evidence of an anticipatory breach by the plaintiffs (see, D’Abreau v Smith, 240 AD2d 616 ). Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.