Matusik v. Emmerling

—Appeal from an order of the Supreme Court (Dier, J.), entered July 14, 1993 in Warren County, which granted defendant’s motion for summary judgment dismissing the complaint.

We find that defendant’s motion for summary judgment dismissing this action for specific performance was properly granted. The plain language of the parties’ contract for the conveyance of real property states that a retention by plaintiff of defendant’s deposit following a default by defendant constitutes the acceptance of liquidated damages and terminates the contract. Here, plaintiff admittedly failed to return defendant’s deposit and this election of remedies by her mandates the dismissal of this action as a matter of law.

Mikoll, J. P., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, with costs.