TOOBE v. SCARLATO (2007)

In an action to recover damages for breach of contract and specific performance of a contract for the sale of real property, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Hart, J.), entered March 1, 2007, which granted the defendant's motion for summary judgment dismissing the complaint, denied her cross motion for summary judgment, and dismissed the complaint.

ORDERED that the order and judgment is affirmed, with costs.

The Supreme Court properly denied the plaintiff's cross motion for summary judgment since she failed to meet her burden of establishing prima facie entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Dairo v. Rockaway Blvd. Props., LLC., 44 A.D.3d 602, 843 N.Y.S.2d 642 [2d Dept. 2007];  Gulotta v. Ippolito, 296 A.D.2d 380, 745 N.Y.S.2d 439;  Finkelman v. Wood, 203 A.D.2d 236, 609 N.Y.S.2d 655).   In addition, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.   Once the defendant established a prima facie case for summary judgment, the burden shifted to the plaintiff, who failed to raise a triable issue of fact as to whether the defendant breached the contract in question by exercising her right to cancel as a result of the plaintiff's failure to obtain a mortgage commitment within the time period specified in the contract (see Gulotta v. Ippolito, 296 A.D.2d at 380, 745 N.Y.S.2d 439;  Goldport Props. v. Taylor, 275 A.D.2d 761, 762, 714 N.Y.S.2d 233;  Finkelman v. Wood, 203 A.D.2d at 236-237, 609 N.Y.S.2d 655;  see also 1550 Fifth Ave. Bay Shore v. 1550 Fifth Ave., 297 A.D.2d 781, 783, 748 N.Y.S.2d 601;  Suarez v. Ingalls, 282 A.D.2d 599, 600, 723 N.Y.S.2d 380;  Cerabino Custom Bldrs. v. Rigoglioso, 135 A.D.2d 481, 521 N.Y.S.2d 723;  Dale Mtge. Bankers Corp. v. 877 Stewart Ave. Assoc., 133 A.D.2d 65, 66-67, 518 N.Y.S.2d 411).   Since the plaintiff failed to offer any credible evidence demonstrating that the defendant had not rightfully exercised the option to cancel the contract, the defendant was entitled to judgment as a matter of law (see Gulotta v. Ippolito, 296 A.D.2d at 380, 745 N.Y.S.2d 439;  Goldport Props. v. Taylor, 275 A.D.2d at 762, 714 N.Y.S.2d 233;  Finkelman v. Wood, 203 A.D.2d at 237, 609 N.Y.S.2d 655).

The plaintiff's remaining contentions are without merit.