Opinion
May 1, 1989
Appeal from the Supreme Court, Westchester County (Gurahian, J.).
Ordered that the order is reversed insofar as appealed from, on the law, and those branches of the defendants' cross motion which were to dismiss the first and second causes of action asserted in the complaint and for summary judgment on the third counterclaim is granted, with costs.
The plaintiff purchasers failed to effectively cancel the contract of sale under its terms and, thus, their failure to appear at closing constituted a breach of that contract (see, Maxton Bldrs. v Lo Galbo, 68 N.Y.2d 373). Moreover, pursuant to the terms of the contract, the defendant sellers were entitled to retain the entire down payment as liquidated damages, regardless of the amount of damages they actually suffered (see, Maxton Bldrs. v Lo Galbo, supra; Levine v Trattner, 130 A.D.2d 462). Thus, the court erred in denying the defendants' motion to dismiss the complaint under CPLR 3211(a)(1) and (7) and for summary judgment on the third counterclaim, pursuant to which they alleged entitlement to the down payment. Thompson, J.P., Bracken, Brown and Harwood, JJ., concur.