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

Kenneth Paul BUDD, Respondent, v. Ruthann Helen BUDD, Appellant.

Decided: February 13, 2001

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, HOWARD MILLER, JJ. Daniel C. Mooney, Mattituck, N.Y., for appellant. Frederic C. Foster, Westhampton, N.Y., for respondent.

In a matrimonial action in which the parties were divorced by judgment entered April 21, 1999, the defendant former wife appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Lifson, J.), dated February 29, 2000, as granted that branch of the motion of the plaintiff former husband which was to compel her to execute a deed and other documents necessary to convey title to certain real property to the plaintiff for $40,000, and denied her cross motion to compel the plaintiff to convey title to her, for damages for delaying the closing, and for an award of an attorney's fee, and (2) from an order dated July 17, 2000, which denied her motion for reargument.

ORDERED that the appeal from the order dated July 17, 2000, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated February 29, 2000, is affirmed insofar as appealed from;  and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

On June 4, 1999, the parties entered into a contract for the sale of the marital residence to the defendant for its appraised market value of $160,000.   The contract granted either party the right to cancel the contract if the defendant did not secure mortgage financing within 60 days.   On September 20, 1999, the defendant still had not secured a mortgage commitment, and the plaintiff's attorney notified the defendant's attorney that he was cancelling the contract because the defendant had failed to secure a mortgage commitment and set a firm closing date.   The cancellation of the contract was properly exercised (see, Ting v. Dean, 156 A.D.2d 358, 548 N.Y.S.2d 357;  Tendler v. Lazar, 141 A.D.2d 717, 529 N.Y.S.2d 583).

The defendant's remaining contentions are without merit.

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