DIAZ v. RODRIGUEZ (2004)

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

Liberto DIAZ, et al., Plaintiffs-Appellants, v. Blasina RODRIGUEZ, also known as Blasina Ortiz, Defendant-Respondent.

Decided: October 12, 2004

BUCKLEY, P.J., NARDELLI, ANDRIAS, SAXE, LERNER, JJ.

Roberto Lebron, Bronx, for appellants. Jakubowski Robertson & Goldsmith, Saint James (Mark Goldsmith of counsel), for respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered July 8, 2003, which denied plaintiffs' motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs defaulted when they failed to notify defendant as to their ability to obtain a mortgage by the deadline and proceed to closing. In light of that breach of contract, they were not entitled to recover their down payment (see Maxton Bldrs. v. Lo Galbo, 68 N.Y.2d 373, 509 N.Y.S.2d 507, 502 N.E.2d 184 [1986] ).

We have considered defendants' remaining contentions and find them without merit.

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