Malchuski v Porrello

[*1] Malchuski v Porrello 2009 NY Slip Op 51355(U) [24 Misc 3d 131(A)] Decided on June 25, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 25, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ
2008-1043 S C.

Kimberly Malchuski and SALVATORE PANE, Respondents,

against

Sebastian J. Porrello, Appellant, -and- MITCHELL P. FERRARO, as Escrow Agent, Defendant.

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated February 21, 2008. The order, insofar as appealed from, denied defendant Sebastian J. Porrello's motion for summary judgment dismissing the complaint and for judgment in his favor in the principal sum of $11,250 on his counterclaim.

Order, insofar as appealed from, reversed without costs and defendant Sebastian J. Porrello's motion for summary judgment dismissing the complaint and for judgment in his favor in the principal sum of $11,250 on his counterclaim granted.

Plaintiffs commenced this action seeking to recover the $11,250 down payment they made pursuant to a written agreement for the purchase of defendant Sebastian J. Porrello's house, which down payment was given to defendant Mitchell P. Ferraro to hold as escrow agent. Defendant Porrello moved for summary judgment dismissing the complaint and for judgment on his counterclaim in the principal sum of $11,250, representing the down payment given to the escrow agent. In support of his motion for summary judgment, Porrello alleged that plaintiffs had breached the contract by failing to close. In opposition to the motion, plaintiffs alleged that Porrello had orally canceled the contract, entitling plaintiffs to the return of their down payment. By order dated February 21, 2008, insofar as appealed from, the District Court denied Porrello's motion, finding that it could not determine whether plaintiffs had willfully defaulted such that [*2]Porrello would be entitled to retain the amount of plaintiffs' down payment.

Upon a review of the record, we find that Porrello's motion for summary judgment should have been granted. Plaintiff Pane's affidavit submitted in opposition to the motion made reference to two recorded voice messages in which, Pane claimed, Porrello had canceled the contract. However, Pane's affidavit was insufficient because it was devoid of any assertion that Pane had personal knowledge of the contents of the voice messages. Thus, plaintiffs failed to submit an affidavit in opposition by one with personal knowledge of the facts so as to raise a triable issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Tanenbaum J.P., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 25, 2009