Castaldi v. Multer

—In an action by the purchasers for specific performance and to recover damages for breach of a contract to sell real property, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Jones, J.), entered March 1, 1985, which, after a nonjury trial, denied the remedy of specific performance and instead awarded the plaintiffs their out-of-pocket expenses and the return of down payment, plus interest, attorney’s fees and damages for willful breach.

Judgment affirmed, without costs or disbursements.

The parties entered into a contract for the purchase of the defendants’ house. The defendants were going to purchase another house, but were unable to do so, and although they attempted to find suitable accommodations for themselves and their eight children, their attempts were unsuccessful. After several adjournments of the closing, the plaintiffs brought an action seeking equitable and legal relief. Trial Term properly exercised its discretion in denying the plaintiffs equitable relief upon finding (1) that the defendants made a good-faith effort to find housing and (2) that awarding specific performance would produce hardship to the defendants and their eight children (see, Da Silva v Musso, 53 NY2d 543; Hadcock Motors v Metzger, 92 AD2d 1). Trial Term’s denial of loss-of-bargain damages was proper in the absence of proof of value at the time of the breach (see, Bailey v Morgan, 95 AD2d 883, affd 62 NY2d 844; Commercial Cas. Ins. Co. v Roman, 269 NY 451). Mangano, J. P., Niehoff, Rubin and Kunzeman, JJ., concur.