Camperlino & Fatti Builders, Inc. v. Dimovich Construction Corp.

Jul 12, 1991
Versions:175 A.D.2d 595

— Order unanimously affirmed without costs. Memorandum: Defendant Sofia Dimovich abandoned an appeal from an order of Supreme Court, Onondaga County, entered August 17, 1988, granting partial summary judgment on plaintiff’s first cause of action for breach of contract and directing specific performance. Judgment was never entered upon that order, specific performance never occurred, and specific performance is now impossible because a judgment foreclosing a mortgage has been entered and defendants no longer own the property. *596Plaintiff made a second motion for summary judgment, which resulted in an order striking defendants’ amended answer and directing an assessment of money damages. Defendant Sofia Dimovich contends on this appeal from the second order that factual issues have been raised concerning the validity of the contract. The first order necessarily determined the validity of the contract and is law of the case (see generally, 1 CarmodyWait 2d, NY Prac § 2:64). The doctrine of election of remedies does not apply because specific performance and damages for breach of contract are not inconsistent, both being in affirmance of the contract (see, Judnick Realty Corp. v 32 W. 32nd St. Corp., 61 NY2d 819, 823; see also, 2 Carmody-Wait 2d, NY Prac § 10:1 et seq.J. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J. — Summary Judgment.) Present —Doerr, J. P., Green, Pine, Lawton and Davis, JJ.