Yuen v. Kwan Kam Cheng

69 A.D.3d 536, 895 N.Y.2d 37

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 2010
• Status: Published

Opinion

Defendants’ argument on appeal that the judicial hearing officer lacked jurisdiction to hear the motion for summary judgment has been waived by their complete and active participation in the hearing and resolution of the motion without objection (see e.g. Morton v Brookhaven Mem. Hosp., 308 AD2d 566 [2003]).

On the merits, the motion court correctly determined that plaintiff was entitled to the refund of her down payment. The contract contained no time limit within which plaintiff had to cancel the purchase agreement, and therefore a reasonable time for cancellation thereunder is implied (see e.g. Combs v Lewis, 1 AD3d 236 [2003], lv denied 3 NY3d 610 [2004]). Plaintiffs notice of cancellation, based on the bank’s denial of the mortgage application, was reasonable. Additionally, any breaches of the contract by plaintiff were unrelated to the reasons for the denial of the mortgage application (see e.g. Gorgoglione v Gillenson, 47 AD3d 472 [2008]).

We have considered defendants’ remaining arguments and find them unavailing. Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Manzanet-Daniels and Román, JJ.