YOUNG v. LEGER (2001)

Supreme Court, Appellate Division, Fourth Department, New York.

Elvira YOUNG and Peter Young, Plaintiffs-Respondents, v. Luisa LEGER and Karl Leger, Defendants-Appellants.

Decided: November 09, 2001

PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS and GORSKI, JJ.

Andrew J. Ryan, for defendants-appellants. Elvira Young and Peter Young, for plaintiffs-respondents.

Supreme Court erred in denying defendants' cross motion seeking summary judgment dismissing the complaint and judgment on the counterclaim. Defendants agreed to purchase real property from plaintiffs. The sales contract contains a mortgage contingency clause providing that, if defendants are unable to obtain a mortgage commitment by September 8, 1998, either party “may cancel [the] contract by written notice to the other”. The mortgage commitment was not obtained until September 9, 1998, and thus defendants properly exercised their right to cancel by providing the requisite written notice (see, Maldonado v. Moore, 135 A.D.2d 1138, 523 N.Y.S.2d 275; see also, Anderson v. Krupp, 199 A.D.2d 295, 296, 604 N.Y.S.2d 273). We therefore modify the order by granting defendants' cross motion, dismissing the complaint and ordering that judgment be entered in favor of defendants on the counterclaim seeking return of their deposit together with costs and interest commencing from September 30, 1998.

Order unanimously modified on the law and as modified affirmed without costs and judgment ordered.

MEMORANDUM:

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