DAY ONE EXPRESS CORP v. GRACEPAT CORPORATION (2008)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about February 20, 2008, which granted defendant's motion for summary judgment dismissing the complaint and cancelling the lis pendens, unanimously affirmed, without costs.

 More than a year after the parties had entered into a contract for the sale of property, plaintiff, by letter of its counsel dated September 7, 2005, offered “to forgo the expenses listed on the attached statement” if the down payment was returned within five business days.   Defendant returned the down payment by letter of its counsel dated September 12, 2005.

 Plaintiff's offer having been timely accepted by defendant, the contract was canceled (see Formey v. Jones, 303 A.D.2d 266, 758 N.Y.S.2d 13 [2003] ). Contrary to plaintiff's argument that its attorney did not have the authority to cancel the contract, plaintiff's principal testified that he and counsel discussed the letter before it was sent and that he prepared the statement of expenses for attachment thereto.   Plaintiff's remaining arguments are equally unavailing.   Defendant's return of the down payment without interest was pursuant to the contract of sale.   The failure to execute mutual releases did not invalidate defendant's acceptance of plaintiff's offer (see Meier v. Stonebrook Structured Prods., LLC, 18 A.D.3d 228, 795 N.Y.S.2d 8 [2005] ).