Steciw v. Tondo

Judgment unanimously modified and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Ontario County, for further proceedings, in accordance with the following memorandum: Defendant appeals from a summary judgment awarding plaintiff $4,785 in this action for breach of a contract in which defendant agreed to purchase real property from plaintiff for $32,000. We agree that defendant has presented no cognizable defense to the action and affirm as to liability. We hold, however, that the court erred in summarily awarding damages based on the difference between the contract price and the price for which plaintiff ultimately sold the property. It is unclear from the record whether the realtor’s commission, payable by plaintiff, was part of the contract price and whether such commission was ever paid. Also, there are questions with respect to whether plaintiff, who after the breach did not list the property with a realtor but sold it for $5,500 less than the contract price, fulfilled his duty to mitigate damages. The matter is remitted for an immediate trial on damages (see CPLR 3212, subd [c]). (Appeal from judgment of *649Supreme Court, Ontario County, Pine, J. — summary judgment.) Present — Hancock, Jr., J. P., Callahan, Boomer, Green and Schnepp, JJ.