Baer v Chiger (2011 NY Slip Op 51543(U))

Baer v Chiger

2011 NY Slip Op 51543(U) [32 Misc 3d 138(A)]

Decided on August 5, 2011

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Rochelle Baer and DAVID BAER, Respondents,

against

Beth Susan Chiger, Appellant.

Appeal from a judgment of the District Court of Nassau County, Second District (Donald Birnbaum, J.), entered September 30, 2009. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiffs the principal sum of $1,355.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the action is dismissed.

Plaintiffs brought this small claims action to recover the sum of $5,000 as damages resulting from defendant's alleged breach of a contract for the sale of a private residence. At a nonjury trial, plaintiffs established that defendant, the seller, represented her home as a two-family house when, in fact, the certificate of
occupancy demonstrated that it was a one-family house. According to the contract of sale, defendant was entitled to cancel the contract if the home renovations necessary to obtain a two-family certificate of occupancy would cost her more than $500, provided she refund plaintiffs' down payment and "the net cost of examination of title." The record establishes that rather than making the required renovations, defendant refunded plaintiffs' down payment and paid for the examination of title. Following the trial, the District Court, insofar as is relevant to this appeal, awarded plaintiffs the principal sum of $1,355.

Upon a review of the record, we find that substantial justice was not done between the parties according to the rules and principles of substantive law (UDCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). Plaintiffs failed to establish any breach of contract by defendant. There has been no showing that defendant's cancellation of the contract was wrongful or that defendant failed to comply with the terms of the contract upon cancellation. It was conceded that defendant returned the down payment and paid for the cost of the examination of title (see Andersen v Ferdinand, 17 AD3d 386, 387 [2005]). Accordingly, the judgment, insofar as appealed from, is reversed and the [*2]action is dismissed.