Young v. Leger

—Order unanimously modified on the law and as modified affirmed without costs and judgment ordered in accordance with the following Memorandum: Supreme Court erred in denying defendants’ cross motion seeking summary judgment dismissing the complaint and judgment on the counterclaim. Defendants agreed to purchase real property from plaintiffs. The sales contract contains a mortgage contingency clause providing that, if defendants are unable to obtain a mortgage commitment by September 8, 1998, either party “may cancel [the] contract by written notice to the other.” The mortgage commitment was not obtained until September 9, 1998, and thus defendants properly exercised their right to cancel by providing the requisite written notice (see, Maldonado v Moore, 135 AD2d 1138; see also, Anderson v Krupp, 199 AD2d 295, 296). We. therefore modify the order by granting 858 defendants’ cross motion, dismissing the complaint and ordering that judgment be entered in favor of defendants on the counterclaim seeking return of their deposit together with costs and interest commencing from September 30, 1998. (Appeal from Order of Supreme Court, Monroe County, Barry, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Burns and Gorski, JJ.