
    Deonarine Ramnarain, Respondent, v Chandradat Ramnarain, Appellant, et al., Defendant. Sandra Baichu, Nonparty Respondent.
    [816 NYS2d 189]
   In an action, inter alia, for the partition of real property, the defendant Chandradat Ramnarain appeals from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated October 1, 2004, as directed the return of the plaintiffs down payment on the sale of the property.

Ordered that the order is reversed insofar as appealed from, on the law, with costs.

The plaintiff was the high bidder at an auction for the sale of the real property that is the subject of this action, and made a down payment to the referee. The Supreme Court, although finding the plaintiff in default of the terms of the sale and directing that the property be resold, directed the return of his down payment. This was error (see Maxton Bldrs. v Lo Galbo, 68 NY2d 373, 378 [1986]; New Colony Homes, Inc. v Long Is. Prop. Group, LLC, 21 AD3d 1072 [2005]). However, in light of our determination in a related appeal reversing the order granting the appellant’s cross motion, inter alia, to hold the plaintiff in default (see Ramnarain v Ramnarain, 30 AD3d 394 [2006] [decided herewith]), forfeiture of the down payment is not appropriate. However, if the down payment has already been returned, and the resale of the property has not been concluded, the plaintiff must provide a new down payment of $34,000 to the referee, the same amount of the returned down payment.

Motion by the defendant Chandradat Ramnarain for leave to appeal from an order of the Supreme Court, Queens County, dated October 1, 2004. By decision and order on motion dated July 21, 2005, the motion was held in abeyance, and was referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the motion is granted. Florio, J.E, Ritter, Krausman and Covello, JJ., concur.  