Betty Ann D'Agnese v Diana Spinelli

D'Agnese v Spinelli 2006 NY Slip Op 04038 [29 AD3d 851] May 23, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

Betty Ann D'Agnese, Formerly Known as Betty Ann Pinckney, Appellant,
v
Diana Spinelli, Respondent.

—[*1]

In an action to recover damages for breach of a real estate contract, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (LaCava, J.), entered July 1, 2005, which, after a nonjury trial, and upon a decision of the same court dated October 8, 2004, is in favor of the defendant on her counterclaims and against the plaintiff in the principal sum of $20,000.

Ordered that the notice of appeal from the decision is deemed to be a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further,

Ordered that the judgment is affirmed, without costs or disbursements.

"As this case was tried to the court, without a jury, this Court's power to review the evidence is as broad as that of the trial court, with appropriate regard given to the decision of the trial judge who was in a position to assess the credibility of the witnesses" (Bubba's Bagels of Wesley Hills, Inc. v Bergstol, 18 AD3d 411, 412 [2005]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Here, we agree with the trial court's conclusion that the defendant properly and effectively exercised her right to cancel the subject real estate contract in accordance with the mortgage contingency clause (see Suarez v Ingalls, 282 AD2d 599 [2001]; Baker v Norman, 226 AD2d 301 [1996]; Dellicarri v Hirschfeld, 210 AD2d 584 [1994]). Thus, under the express terms of the contract, the defendant was entitled to a full refund of her down payment, together with the interest which was earned from the deposit of her down payment in an interest-bearing account (see Duffy v St. Germain, 21 AD3d 872 [2005]; Baker v Norman, supra; Berholtz v Georgiou, 184 AD2d 677 [1992]; Lindenbaum v Royco Prop. Corp., 165 AD2d 254 [1991]; Kressel, Rothlein & Roth v Gallagher, 155 AD2d 587 [1989]). [*2]

The plaintiff's remaining contentions are without merit. Schmidt, J.P., Krausman, Mastro and Covello, JJ., concur.