DiBlanda v. ADC Pinebrook, LLC

Appellate Division of the Supreme Court of New York

DiBlanda v. ADC Pinebrook, LLC

44 A.D.3d 702, 843 N.Y.S.2d 429

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 9, 2007

StatusPublished

Cited by2 cases

This text of 44 A.D.3d 702 (DiBlanda v. ADC Pinebrook, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DiBlanda v. ADC Pinebrook, LLC, 44 A.D.3d 702, 843 N.Y.S.2d 429 (N.Y. Ct. App. 2007).

Pincite

Opinion

In an action to recover a down payment paid pursuant to a contract for the sale of real property, the plaintiff appeals from a judgment of the Supreme Court, Dutchess County (Pagones, J), dated June 26, 2006, which, after a nonjury trial, and upon a decision of the same court dated June 12, 2006, is in favor of the defendants and against her dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiffs contentions, there is ample evidence in the record to support the trial court’s determination that the plaintiff breached the clear and unequivocal provisions of the contract (see Matter of Wallace v 600 Partners Co., 86 NY2d 543, 548 [1995]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]) as well as the implied covenant of good faith and fair dealing (see Binks v Farooq, 178 AD2d 999 [1991]). In particular, the plaintiff completely failed to apply for a mortgage commitment, failed to obtain a mortgage commitment within 45 days of her former attorney’s receipt of the contract, and failed to provide reasonably timely notice of her purported inability to secure a commitment (see e.g. Dobbins v Moss, 305 AD2d 534 [2003]; Vafa v Cramer, 212 AD2d 593 [1995]; Gasparino v Rigatti, 160 AD2d 973 [1990]; Hendel v Scheuer, 150 AD2d 431 [1989]; Levine v Trattner, 130 AD2d 462 [1987]). Under these circumstances, the plaintiff had no authority to cancel the contract, and the defendants were entitled to retain the down payment (see generally Maxton Bldrs. v Lo Galbo, 68 NY2d 373 [1986]). Schmidt, J.P., Santucci, Florio and Dillon, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover a down payment paid pursuant to a contract for the sale of real property, the plaintiff appeals from a judgment of the Supreme Court, Dutchess County (Pagones, J), dated June 26, 2006, which, after a nonjury trial, and upon a decision of the same court dated June 12, 2006, is in favor of the defendants and against her dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiffs contentions, there is ample evidence in the record to support the trial court’s determination that the plaintiff breached the clear and unequivocal provisions of the contract (see Matter of Wallace v 600 Partners Co., 86 NY2d 543, 548 [1995]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]) as well as the implied covenant of good faith and fair dealing (see Binks v Farooq, 178 AD2d 999 [1991]). In particular, the plaintiff completely failed to apply for a mortgage commitment, failed to obtain a mortgage commitment within 45 days of her former attorney’s receipt of the contract, and failed to provide reasonably timely notice of her purported inability to secure a commitment (see e.g. Dobbins v Moss, 305 AD2d 534 [2003]; Vafa v Cramer, 212 AD2d 593 [1995]; Gasparino v Rigatti, 160 AD2d 973 [1990]; Hendel v Scheuer, 150 AD2d 431 [1989]; Levine v Trattner, 130 AD2d 462 [1987]). Under these circumstances, the plaintiff had no authority to cancel the contract, and the defendants were entitled to retain the down payment (see generally Maxton Bldrs. v Lo Galbo, 68 NY2d 373 [1986]). Schmidt, J.P., Santucci, Florio and Dillon, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

44 A.D.3d 702, 843 N.Y.S.2d 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diblanda-v-adc-pinebrook-llc-nyappdiv-2007.

Opinion

Related

Cite This Page — Counsel Stack