Opinion
October 17, 1988
Appeal from the Supreme Court, Suffolk County (Orgera, J.).
Ordered that the order is affirmed, with costs.
Initially, we note that since the plaintiff failed to raise any issue in the Supreme Court, Suffolk County, with respect to the procedural propriety of the defendants' motion to dismiss the complaint (see, CPLR 3211 [a] [1]) before the Supreme Court, the issues raised with respect thereto on appeal may not serve as a basis for reversal (see, Lang v Cohalan, 127 A.D.2d 17, 21; Nelson v Times Sq. Stores Corp., 110 A.D.2d 691, appeal dismissed 67 N.Y.2d 645).
Furthermore, the documentary evidence submitted by the defendants unambiguously established that the plaintiff purchaser canceled the contract upon learning that the defendants sellers allegedly breached a warranty, and the cancellation was accepted by the defendants (see, Farahzad v Monometrics Corp., 119 A.D.2d 721; Cooper v Bosse, 85 A.D.2d 616). Thus, the plaintiff could not, more than three months after the cancellation and the closing date set forth in the contract, insist that the contract be fulfilled (see, Gravenhorst v Zimmerman, 236 N.Y. 22; Cooper v Bosse, supra). The plaintiff's contention that the rescission was ineffective because it was based upon mutual mistake is similarly unavailing. Thompson, J.P., Brown, Rubin and Eiber, JJ., concur.