Ingber v. Greco

— In an action for specific performance of a contract to sell real property, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Robbins, J.), dated March 10, 1987, as granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint and denied his cross motion for summary judgment. Ordered that the order is affirmed insofar as appealed from, with costs. The contract involved herein specifically provided that if the plaintiff purchaser was unable to procure a mortgage commitment within 35 days, "either party, by written notice to the other, may cancel this contract”. The plaintiff’s unilateral attempted waiver of this clause by his offer to proceed on an all-cash basis after he failed to obtain the mortgage commitment within the specified time was ineffective as this clause was for the benefit of both parties. Because the defendants timely exercised their right to cancel the agreement by the written notice and refund of the deposit as called for in the contract, summary judgment was properly granted to them (see, Koo v Gross, 133 AD2d 613; Dale Mtge. Bankers Corp. v 877 Stewart Ave. Assocs., 133 AD2d 65, lv denied 70 NY2d 612; Grossman v Perlman, 132 AD2d 522; Castaldo v Dalmazio, 129 AD2d 548, lv denied 70 NY2d 604). Thompson, J. P., Lawrence, Rubin and Spatt, JJ., concur.