Opinion
2012-06-12
Fernando MATEO, et al., Plaintiffs–Appellants, v. Donna BAEK, Defendant–Respondent.
Garvey Schubert Barer, New York (Andrew Goodman of counsel), for appellants. Law Offices of Jonathan Y. Sue, PLLC, New York (Jonathan Y. Sue of counsel), for respondent.
Garvey Schubert Barer, New York (Andrew Goodman of counsel), for appellants. Law Offices of Jonathan Y. Sue, PLLC, New York (Jonathan Y. Sue of counsel), for respondent.
Judgment, Supreme Court, New York County (Joan A. Madden, J.), entered September 13, 2011, after a nonjury trial, dismissing the complaint and awarding defendant $175,000, plus costs and disbursements, and bringing up for review an order, same court and Justice, entered on or about September 12, 2011, which found in defendant's favor on her counterclaim for breach of contract, unanimously affirmed, without costs. Appeal from the order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The court's primary finding, that plaintiffs did not make diligent and good faith efforts to apply for a mortgage pursuant to the mortgage contingency clause in the parties' contract, is amply supported by the evidence ( see generally Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ). Indeed, there was no competent evidence that plaintiff submitted a mortgage application for the subject unit or received a denial from the institutional lender ( cf. Ruggeri v. Brenner, 186 A.D.2d 441, 589 N.Y.S.2d 23 [1992],lv denied 81 N.Y.2d 704, 595 N.Y.S.2d 398, 611 N.E.2d 299 [1993] ). The letter from plaintiffs' broker, stating that he had been informed that plaintiffs' mortgage application had been denied, was not admitted for the truth of the hearsay statements contained therein, and no employee from the institutional lender testified as to the purported denial.
We have considered plaintiffs' remaining arguments and find them unavailing.