Opinion
February 5, 1993
Appeal from the Supreme Court, Erie County, Fallon, J.
Present — Green, J.P., Pine, Balio, Davis and Doerr, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred by limiting defendant's damages to 10% of the contract price. It is well settled that a vendor is entitled to retain the down payment of the defaulting purchaser, even if the down payment exceeds the vendor's actual damages (see, Maxton Bldrs. v Lo Galbo, 68 N.Y.2d 373; Almima Partners v Gherardi, 177 A.D.2d 611; Alirkan v Garcia, 162 A.D.2d 571; Rho v Morningside In Purchase Assocs., 150 A.D.2d 355; Dmochowski v Rosati, 96 A.D.2d 718). We have examined the arguments raised by plaintiffs on their cross appeal and find them to be either unpreserved or without merit.