Opinion
March 22, 1982
In an action, inter alia, to direct that an amount of money being held in escrow be turned over to plaintiffs as partial liquidated damages, based upon defendants' breach of contract, plaintiffs appeal from an order of the Supreme Court, Nassau County (Di Paola, J.), dated December 22, 1980, which granted defendants' motion for summary judgment on their counterclaim, and denied their cross motion for summary judgment. Order affirmed, with $50 costs and disbursements. Plaintiffs and defendants entered into a contract for the sale of real property to defendants, in which a 30-day period was provided for defendants to "secure" a mortgage commitment to finance their purchase. If unable to secure such a commitment, the defendants could cancel the contract. Three days after the 30 days had expired, defendants sent a letter notifying plaintiffs of their cancellation. The next day, defendants received a mortgage commitment, which the bank had mailed two days after the expiration of the conditional period, but which was dated prior to its expiration. Under these circumstances, defendants cannot be held to have secured the mortgage within the specified time period and, therefore, they were within their rights in canceling the contract. (See Zigman v. McMackin, 6 A.D.2d 907.) The other issues raised lack merit. Damiani, J.P., Lazer, Gibbons and Gulotta, JJ., concur.