Opinion
December 14, 1987
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The contract involved herein specifically provided that if the plaintiff purchaser was unable to procure a mortgage commitment within 35 days, "either party, by written notice to the other, may cancel this contract". The plaintiff's unilateral attempted waiver of this clause by his offer to proceed on an all-cash basis after he failed to obtain the mortgage commitment within the specified time was ineffective as this clause was for the benefit of both parties. Because the defendants timely exercised their right to cancel the agreement by the written notice and refund of the deposit as called for in the contract, summary judgment was properly granted to them (see, Koo v Gross, 133 A.D.2d 613; Dale Mtge. Bankers Corp. v 877 Stewart Ave. Assocs., 133 A.D.2d 65, lv denied 70 N.Y.2d 612; Grossman v Perlman, 132 A.D.2d 522; Castaldo v Dalmazio, 129 A.D.2d 548, lv denied 70 N.Y.2d 604). Thompson, J.P., Lawrence, Rubin and Spatt, JJ., concur.