
    Paul Feinberg, Plaintiff, v J. Bongiovi Contracting, Defendant.
    District Court of Suffolk County, Third District,
    August 12, 1981
    APPEARANCES OF COUNSEL
    
      Paul Feinberg, plaintiff pro se. Alan B. Kay ton for defendant.
   OPINION OF THE COURT

Peter G. Dounias, J.

Plaintiff instituted a small claims action to recover for return of down payment in the amount of $400. Plaintiff testified that he ordered wood, paid cash, received a receipt and three weeks later he canceled the order. He was advised that the cancellation would have to be forwarded to the woodcutter, who in turn would approve same, and his money would be returned to him.

In the instant case, the buyer notified the seller in writing prior to the delivery of wood that he was revoking the agreement. Further, he was provided by the seller with a written form confirming the rejection for the purpose of notifying the woodcutter who supplied the seller with wood of the rejection of the contract well before the delivery date.

Since it appears that the wood which was the subject of the action was never tendered to the plaintiff, there can be no question of acceptance or rejection (see Uniform Commercial Code, §§2-602, 2-606). Rather, it would appear from the above facts that the buyer repudiated the contract (Uniform Commercial Code, §§2-301, 2-610). Under these circumstances, subdivision (2) of section 2-718 of the Uniform Commercial Code provides that even if the buyer repudiates, he may still recover a portion of his deposit. The amount recoverable is the amount deposited, less the lesser of $500 or 20% of the value of the total performance. However, if the contract contains a liquidated damage provision, then the amount recoverable is the amount deposited less the liquidated damages. From this amount is deducted any damages to which the seller is entitled due to the buyer’s breach.

Since the contract does not contain a liquidated damage provision, the plaintiff is entitled to the following: $400 original deposit minus 20% of the contract price of $895, $179, making a subtotal of $221, minus $50 seller’s costs for notification to woodcutter, leaving a balance of $171.

Judgment for the plaintiff in the amount of $171, with costs and disbursements, plus interest from the date of repudiation, November 28, 1980.  