Hendel v. Scheuer , 150 A.D.2d 431 ( 1989 )

In an action to recover a down payment on a canceled contract for the sale of real property, the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Marbach, J.), entered December 21, 1987, which, upon the defendant’s motion, made at the conclusion of the plaintiffs’ case, to dismiss the complaint for failure to make out a prima facie case, is in favor of the defendant and against them.

Ordered that the judgment is affirmed, with costs.

The parties entered into a contract dated March 30, 1987 to purchase certain real property. Pursuant to the concededly ambiguous terms of the contract, the plaintiffs had 60 days from the date a signed contract was mailed to the purchasers’ attorney to secure a mortgage commitment. In order to cancel, however, the plaintiffs had to notify the defendant within 35 days of that date of their inability to obtain a mortgage commitment. The plaintiffs notified the defendant of their inability to obtain a commitment on April 24, 1987, within that 35-day period. However, they did not submit a mortgage application until sometime between April 24, 1987 and April 28, 1987. By failing to apply for a mortgage before canceling the contract, the plaintiffs breached its terms without legal excuse. Thus, they cannot recover their down payment (see, Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Lawrence v Miller, 86 NY 131; Levine v Trattner, 130 AD2d 462). Mangano, J. P., Thompson, Bracken and Eiber, JJ., concur.