Bavaro v. Spare Wheels, Inc. (209 A.D.2d 658, 1994)

—In an action to recover damages for breach of contract and specific performance, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Brucia, J.), entered April 2, 1993, which granted the defendants’ motion for summary judgment dismissing the complaint, and denied the plaintiffs’ cross motion for judgment in their favor.

Ordered that the order is affirmed, with costs.

In moving for summary judgment, the defendants established that they contracted to sell the plaintiffs a new 1989 Ferrari F-40 for $275,000, and that the contract provided that in the event that the manufacturer did not deliver the car, the plaintiffs’ $50,000 deposit would be refunded. The defendants further established that the 1989 model was not available in the United States, and that the F-40 was first available in the United States in 1990. Accordingly, the defendants refunded the $50,000 to the plaintiffs. Because the plaintiffs failed to raise a triable issue of fact as to whether the contract was breached (see, Zuckerman v City of New York, 49 NY2d 557, 562-563), the Supreme Court properly dismissed the complaint. Mangano, P. J., Thompson, Copertino and Hart, JJ., concur.