Halbreich v. Braunstein

Dec 30, 2004
Versions:13 A.D.3d 1137
787 N.Y.S.2d 530
2004 N.Y. App. Div. LEXIS 16393

Appeal from a judgment of the Supreme Court, Erie County (John P Lane, J.), entered October 31, 2003. The judgment was entered, upon a jury verdict, in favor of plaintiffs and against defendants in the amount of $90,162.73.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum:

Plaintiffs commenced this action to recover damages for defendants’ alleged breach of contract for the sale of residential real property owned by defendants. The sale was contingent upon defendants’ obtaining a mortgage commitment at the current mortgage interest rates on another property defendants owned in order to enable them to pay the existing liens on the property that is the subject of the contract at issue herein. Supreme Court properly denied defendants’ motion for a directed verdict (see CPLR 4401) or, in the alternative, a new *1138trial (see CPLR 4404). With respect to that part of the motion for a directed verdict, we conclude, upon viewing the evidence in the light most favorable to plaintiffs, that there is a rational process by which the jury could have found that defendants breached the contract by failing to accept one of the mortgage commitments offered to them (see generally Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Stevens v Maimone, 6 AD3d 1222 [2004], lv denied 3 NY3d 605 [2004]). With respect to that part of the motion to set aside the verdict as against the weight of the evidence and for a new trial, we conclude that the verdict is supported by a fair interpretation of the evidence (see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). Defendants failed to preserve for our review their remaining contentions with respect to the charge to the jury and the interrogatories included in the verdict sheet (see Batavia Turf Farms v County of Genesee, 239 AD2d 903, lv dismissed 91 NY2d 906 [1998], rearg denied 91 NY2d 1003 [1998]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Martoche and Hayes, JJ.