The Colacinos have also failed to sustain their burden of showing that the liquidated
damages clause of the Agreement is unenforceable. It is well settled that a vendee who defaults
on a real estate contract without lawful excuse, cannot recover the down payment. Maxton
Builders, Inc. v. LoGalbo, 68 NY2d 373, 378 (1986). Although "[l]iquidated damages
clauses have traditionally been subject to judicial oversight to confirm that the stipulated
damages bear a reasonable proportion to the probable loss real estate down payments have been
subject to limited supervision." Uzan v.
845 UN Ltd. Partnership, 10 AD3d 230, 237 (1st Dep't 2004). Furthermore, courts have
consistently enforced provisions in real estate contracts permitting sellers to retain a 10% down
payment as liquidated damages. See Id.; Chateau D'If Corp. v. City [*11]of New York, 219 AD2d 205 (1st Dep't 1996), lv app
den 88 NY2d 811 (1996). In consideration of the above, the Colacinos have failed to show
that the circumstances in this case merit a departure from established standards.
The Sellers' cross motion to disqualify Bergman on the grounds that he is likely to be
called as a witness is denied. It is well-settled that "the disqualification of an attorney is a matter
that rests within the sound discretion of the court." Flores v. Willard J. Price Associates, LLC, 20 AD3d 343, 344 (1st
Dept. 2005). The Rules of Professional Conduct (formerly the New York Code of Professional
Responsibility) serve as a general guide in considering disqualification motions. S & S Hotel
Ventures Limited Partnership v 777 S. H. Corp., 69 NY2d 437 (1st Dept 1987). Under the
advocate witness rule contained in the Rule 3.7 of The Rules of Professional Conduct, an