Opinion
June 27, 1988
Appeal from the Supreme Court, Kings County (Krausman, J.).
Ordered that the order is reversed, on the law, with costs, and the motion is denied.
We disagree with the determination of the Supreme Court, Kings County, that the defendant seller acted within her rights in canceling the contract (cf., Kramer v Palnagio, 128 A.D.2d 842, 843; Lieberman v Pettinato, 120 A.D.2d 646). The mortgage contingency clause was solely for the benefit of the plaintiff purchaser and did not grant the seller the option to cancel the contract in the event the purchaser failed to obtain a mortgage commitment by a specified date (cf., Grossman v Perlman, 132 A.D.2d 522, 523, lv denied 70 N.Y.2d 616, rearg denied 71 N.Y.2d 890; Lieberman v Pettinato, supra, at 647). Moreover, the record indicates that the buyer obtained a mortgage commitment within the time specified in the contract and that the seller was apprised of this fact by the realtor.
In addition, the purchaser's acceptance of a check from the seller which represented a refund of his down payment did not constitute an accord and satisfaction. The check was nothing more than a return of the buyer's own property which the seller had no right to retain after her breach (see, Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 N.Y.2d 590, rearg denied 64 N.Y.2d 885; Lotito v Mazzeo, 132 A.D.2d 650, 651; Paynter v Vishnia, 114 A.D.2d 404, 405). Brown, J.P., Kunzeman, Rubin and Kooper, JJ., concur.