Maldonado v. Moore

135 A.D.2d 1138, 523 N.Y.S.2d 275, 1987 N.Y. App. Div. LEXIS 53008

Opinion

— Order unanimously reversed on the law without costs and summary judgment granted to defendants dismissing complaint. Memorandum: The court erred in granting summary judgment to plaintiffs. Instead, summary judgment dismissing the complaint should have been granted to defendants. Defendants had agreed to purchase real property from plaintiffs. The contract provided that, if the purchasers were unable to obtain a mortgage commitment by November 20, 1985, either party could cancel in writing without further liability, and it prohibited oral modification. It is uncontroverted that no mortgage commitment was obtained by that date. Defendants properly exercised their right to cancel by a writing received by the sellers on or about February 2,1986 even though a mortgage commitment had been issued on January 17, 1986 (see, Sainato v Hormozdi, 87 AD2d 625; Stotz v Cleveland, 53 AD2d 787). (Appeal from order of Supreme Court, Monroe County, Tillman, J. — summary judgment.) Present — Denman, J. P., Boomer, Pine, Balio and Davis, JJ.