Washington Ave. Property, Inc. v. Bronx Pro Real Estate Management, Inc. , 23 N.Y.S.3d 652 ( 2016 )

Washington Ave. Prop., Inc. v Bronx Pro Real Estate Mgt., Inc. (2016 NY Slip Op 00626)

Washington Ave. Prop., Inc. v Bronx Pro Real Estate Mgt., Inc.

2016 NY Slip Op 00626

Decided on February 2, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 2, 2016
Mazzarelli, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.

82

[*1]Washington Ave. Property, 20531/13E Inc., Plaintiff-Respondent-Appellant,

v

Bronx Pro Real Estate Management, Inc., Defendant-Appellant-Respondent.

Daniel J. McKenna, P.C., Eastchester (Daniel J. McKenna of counsel), for appellant-respondent.

Krinsky & Musumeci, PLLC, New York (Carmine V. Musumeci of counsel), for respondent-appellant.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered March 20, 2015, which denied plaintiff's motion and defendant's cross motion for summary judgment, with leave to renew at the close of discovery, unanimously affirmed, without costs.

Pursuant to the amendment to the original contract, the original contract remained in effect except to the extent that it conflicted with the amendment or with Contract A or B. Because the liquidated damages provision in the original contract does not conflict with the amendment or with Contract A or B, it remains in effect. However, an ambiguity exists as to the meaning of the liquidated damages provision. In particular, an issue of fact exists as to whether the parties intended for plaintiff to retain the down payment in the event of defendant's default, given that the parties restructured the contract to use the down payment for another purpose. Accordingly, neither party is entitled to summary judgment (see Ruttenberg v Davidge Data Sys. Corp. , 215 AD2d 191, 193 [1st Dept 1995]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 2, 2016

CLERK