Opinion
2002-03985
Submitted May 22, 2003.
June 16, 2003.
In an action, inter alia, for the return of a down payment on a contract for the sale of real property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Carter, J.), dated March 6, 2002, as granted that branch of the plaintiffs' motion which was for summary judgment on the cause of action to recover the plaintiffs' down payment and denied their cross motion for summary judgment dismissing the complaint, and the plaintiffs cross-appeal from so much of the order as denied that branch of their motion which was for leave to amend the complaint.
Michael D. Solomon, Levittown, N.Y. (Peter M. Zirbes of counsel), for appellants-respondents.
Scott Lockwood, Deer Park, N.Y., for respondents-appellants.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that the cross-appeal is deemed withdrawn; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
The contract of sale provided that "[i]n the event the Seller is not ready to close by December 1, 2000, then the Purchaser shall have the right to terminate this contract." The contract further provided that "[n]either this contract nor any provision thereof may be waived, changed or cancelled except in writing."
It is undisputed that the defendant sellers were not ready to close by December 1, 2000. The defendants claim that they were ready to close by the end of December 2000, before the plaintiffs exercised their option to cancel on January 19, 2001. However, the contract, by providing for its termination on the specified date, did not allow any further adjournments, however reasonable the period (see Kulanski v. Celia Homes, 7 A.D.2d 1006). Further, there is no evidence that the plaintiffs waived their right to cancel (see Edward v. Intl. Bus. Machs. Corp., 174 A.D.2d 863).
The defendants' remaining contentions are without merit.
ALTMAN, J.P., GOLDSTEIN, McGINITY and MASTRO, JJ., concur.