Opinion
570166/03.
Decided August 4, 2004.
Plaintiffs appeal from an order of the Civil Court, New York County, entered October 22, 2002 (Eileen A. Rakower, J.) denying their motion to renew and reargue the court's prior order granting defendants' motion for summary judgment dismissing the complaint.
Order entered October 22, 2002 (Eileen A. Rakower, J.) affirmed, with $10 costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
In this action for return of a deposit in connection with the sale of a cooperative apartment, plaintiff buyers' motion for reargument and renewal of the court's prior order granting defendant sellers summary judgment dismissing the complaint was properly denied. Plaintiffs' submission of a letter from the attorney for the bank which processed plaintiffs' mortgage application and an unsworn "certification" from plaintiffs' mortgage broker presented no new facts and could have been submitted at the time of the prior motion (Matter of Barnes v. State of New York, 159 AD2d 753 [3d Dept 1990], lv dismissed 76 NY2d 935). In any event, these documents were not in admissible form to defeat summary judgment (Cillo v. Schioppo, 250 AD2d 416 [1st Dept 1998]), and were insufficient to sustain plaintiffs' position that they had obtained a loan commitment letter as defined in paragraph 19.5.2 of the sales contract.
At most, the bank made a preliminary offer on November 30, 2000 to give a mortgage, provided certain conditions were met, including a satisfactory appraisal. Plaintiffs' communication to defendants that this document constituted a firm loan commitment was erroneous. Ultimately, the lender denied credit following an appraisal report. However, the period to obtain a commitment expired on December 11, 2000, and plaintiffs did not advise defendants that they had failed to obtain a commitment until March 12, 2001. Plaintiffs' demand for return of the contract deposit based upon their failure to obtain a mortgage was ineffective because, pursuant to the contract of sale (paragraph 19.4), they failed to give timely notice of cancellation (see Arnold v. Birnbaum, 193 AD2d 710). Hence, defendants were entitled to retain the down payment as liquidated damages (see Maxton Builders, Inc. v. Lo Galbo, 68 NY2d 373).
This constitutes the decision and order of the court.