Opinion
July 9, 1990
Appeal from the Supreme Court, Orange County (Peter Patsalos, J.).
Ordered that the appeals from the orders are dismissed as abandoned; and it is further,
Ordered that the judgments are affirmed; and it is further,
Ordered that the respondent in action No. 1 is awarded one bill of costs.
On August 26, 1985, Philip Schatten and Vidmantas Briedis entered into a contract for the sale of Briedis's house. The contract contained a mortgage contingency clause which stated that if the buyer did not obtain a mortgage commitment by September 23, 1985, then either party could declare the contract null and void by serving written notice on the other party.
On October 15, 1985, Schatten received a verbal mortgage commitment from his bank and this information was communicated to Briedis's attorney. On October 16, 1985, Schatten received a written mortgage commitment from his bank, a copy of which was personally delivered to the seller's attorney on the same date. Thereafter, by letter dated and mailed October 16, 1985, Briedis's attorney informed Schatten that he was declaring the contract null and void and returned Schatten's down payment. This letter was received by Schatten's attorney on October 17, 1985.
Schatten commenced action No. 1 against Briedis seeking specific performance of the contract. The real estate broker (Lee Brentnall) commenced a separate action against Briedis seeking payment of his broker's commission (action No. 2). A joint nonjury trial of these two actions was conducted. The trial court found against Briedis and granted Schatten specific performance and the broker payment of his commission.
Upon the foregoing facts, the trial court properly granted specific performance to the buyer. Since the mortgage commitment was obtained and proof thereof delivered to Briedis's attorney before he exercised his option to cancel the contract, the cancellation was untimely and ineffective (see, Kramer v Brown, 131 A.D.2d 816; Murray v. Armour, 139 A.D.2d 708). Since time to obtain the mortgage commitment was not of the essence, the contract remained in effect. Mangano, P.J., Rubin, Rosenblatt and Miller, JJ., concur.