Moran v Erk

Moran v Erk 2007 NY Slip Op 08548 [45 AD3d 1329] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

James J. Moran et al., Respondents, v Mehmet Erk et al., Appellants. (Appeal No. 2.)

—[*1] Harter Secrest & Emery LLP, Buffalo (John G. Horn of counsel), for defendants-appellants.

Phillips Lytle LLP, Buffalo (Chad W. Flansburg of counsel), for plaintiffs-respondents.

Appeal from a judgment of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered July 20, 2006 in a breach of contract action. The judgment, after a nonjury trial, awarded plaintiffs $234,065.75 against defendants.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Following a bench trial, Supreme Court awarded plaintiffs damages arising from defendants' breach of a contract pursuant to which defendants had agreed to purchase plaintiffs' residential property. Contrary to defendants' contention, the evidence supports the court's determination that defendants acted in bad faith by instructing their attorney to disapprove the contract, and thus "the condition that the contract be approved by [defendants'] attorney must be deemed waived and the contract formed" (McKenna v Case, 123 AD2d 517 [1986]). Contrary to defendants' further contention, the court properly awarded statutory interest from the date of defendants' breach of the contract (see City Univ. of N.Y. v Finalco, Inc., 129 AD2d 494, 496 [1987]). Present—Scudder, P.J., Gorski, Lunn, Peradotto and Green, JJ.