Opinion
March 7, 1994
Appeal from the Supreme Court, Queens County (Durante, J.).
Ordered that the order is affirmed, with costs.
The plaintiff contends that the evidence is insufficient to establish that she abandoned a written contract, dated October 24, 1985, for the sale of real property. We disagree. It is well settled that the parties to an agreement can mutually agree to terminate it by expressly assenting to its rescission while simultaneously entering into a new agreement dealing with the same subject matter (see, Rodgers v. Rodgers, 235 N.Y. 408, 410, remittitur amended on other grounds 236 N.Y. 577; Schwartzreich v. Bauman-Basch, Inc., 231 N.Y. 196, 205; Richardson v. Dorato, 92 A.D.2d 687, 688; Strychalski v. Mekus, 54 A.D.2d 1068). The purchaser signed a sales contract, dated March 31, 1989 which expressly stated that "[a]ll oral or written statements, representations, promises, understandings and agreements of SELLER and PURCHASER are merged into and superseded by this contract and the agreement (rider) annexed hereto, which alone fully and completely expresses their agreement". The language of the March 31, 1989, agreement effectively terminated the October 24, 1985, agreement, since it was in writing and signed by the party against whom cancellation was sought to be enforced (see, General Obligations Law § 5-1103).
Moreover, the record amply supports the finding of the Supreme Court that the conduct of the plaintiff and the attendant circumstances constituted an abandonment of the October 24, 1985, contract (see, Matter of Rothko, 43 N.Y.2d 305, 324; Rosiny v Schmidt, 185 A.D.2d 727, 732; Dutch v. Basile, 170 A.D.2d 966; Matter of Schanzer, 7 A.D.2d 275, affd 8 N.Y.2d 972).
Furthermore, the Supreme Court correctly found that the defendant properly exercised his right to terminate the March 31, 1989, contract, inasmuch as the plaintiff failed to obtain a mortgage commitment within the time period expressly stated in the contract (see, B.S.P. Dev. Corp. v. Orphan Asylum Socy., 165 A.D.2d 850, 851; Oak Bee Corp. v. Blankman Co., 154 A.D.2d 3, 7; W.W.W. Assocs. v. Giancontieri, 152 A.D.2d 333, 336-339). The plaintiff has failed to present any evidentiary facts sufficient to support her conclusory allegation that the defendant prevented her from applying for a mortgage by failing to give her a finalized copy of the signed March 31, 1989, contract (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 563; Rotuba Extruders v. Ceppos, 46 N.Y.2d 223). Miller, J.P., Copertino, Santucci and Goldstein, JJ., concur.