Opinion
April 19, 1993
Appeal from the Supreme Court, Queens County (Durante, J.).
Ordered that the judgment is affirmed, with costs.
The trial court failed to set forth essential findings of fact as required by CPLR 4213 (b). However, because the record is sufficiently complete to permit intelligent appellate review, this Court will make the requisite findings of fact (see, Matter of Zisman, 128 A.D.2d 789).
The plaintiff buyer and the defendants sellers entered into a contract for the sale of real property. The contract provided: "This contract is conditioned upon purchaser's obtaining of a conventional mortgage in the amount of $100,000.00 for a period of 25/30 years at the prevailing rate of interest within 45 days from date hereof. In the event that purchaser should fail to obtain such mortgage then either party may cancel the contract upon written notice to the other attorney [and] upon cancellation the deposit paid hereunder shall be returned in full."
After making several unsuccessful attempts to obtain a mortgage, the buyer canceled the contract and requested a return of her deposit. The sellers refused to return the money, apparently unconvinced that the buyer had made sufficient efforts to obtain a mortgage. The buyer then commenced this action. At a nonjury trial, the buyer presented evidence that she made three separate attempts to obtain a mortgage, and that she was unable to qualify for a mortgage. The evidence thus established that the buyer's efforts were sufficient to fulfill her responsibility under the contract (see, Macho Assets v Spring Corp., 128 A.D.2d 680). Accordingly, she is entitled to a return of her down payment. Thompson, J.P., Rosenblatt, Miller and Pizzuto, JJ., concur.