Opinion
May 15, 1989
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order is affirmed, with costs.
The mortgage contingency clause in the contract of sale between the parties was for the benefit of the plaintiffs only and the defendants could not use the failure of the plaintiffs to obtain a mortgage by the specified date as justification for canceling the contract (see, Dale Mtge. Bankers Corp. v 877 Stewart Ave. Assocs., 133 A.D.2d 65, lv denied 70 N.Y.2d 612). The plaintiffs were entitled to a reasonable adjournment of the closing to secure a mortgage commitment (see, Levine v Sarbello, 112 A.D.2d 197, affd 67 N.Y.2d 780).
The defendants, by the letter of their attorney dated July 18, 1985, extended, for the fourth time, the period within which the plaintiffs could obtain a mortgage commitment. Significantly, in the context of the dealings between the parties, that letter also gave "clear, distinct and unequivocal notice" that time was of the essence in the performance of the contract (Ballen v Potter, 251 N.Y. 224, 229). The plaintiffs have failed to come forward with any evidence which tends to show that they were ready, willing and able to close on August 15, 1985, the date specified as law day in the letter dated July 18, 1985. This precludes their entitlement to specific performance (see, Zev v Merman, 134 A.D.2d 555, 557, affd 73 N.Y.2d 781).
We have considered the plaintiffs' remaining contentions and find them to be without merit. Mangano, J.P., Brown, Rubin and Kooper, JJ., concur.