Century 21-Oakdale Properties v. Rosati

Order and judgment unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: We agree with Supreme Court that plaintiffs were not entitled to judgment on their complaint. We find, however, that Supreme Court erred in granting defendant judgment on his counterclaim against plaintiffs for the $3,960 deposit by the Freys, which plaintiff Ira Stein returned to the Freys after the property was transferred to third parties. Supreme Court found that defendant is entitled to that deposit because the Freys unjustifiably withdrew from the first purchase contract. However, the second purchase contract between the Freys and defendant expressly cancelled and replaced the first purchase contract, thereby extinguishing any rights and liabilities under it. Because defendant failed to show any basis for entitlement to the deposit based on the second purchase contract, the judgment granting him recovery on his counterclaim must be reversed. (Appeal from Order and Judgment of Supreme Court, Monroe County, Affronti, J. — Real Estate Commissions.) Present — Callahan, J. P., Denman, Pine, Balio and Lawton, JJ.