J.P.A. Realty, Inc. v. Citi Financial Mortgage Co.

—In an action to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Golia, J.), dated May 8, 2001, as, upon converting the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) into a motion for summary judgment dismissing the complaint, granted the motion. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly found that the plaintiff failed to accept the defendant’s offer to assign a mortgage and note in a timely fashion. By placing certain conditions upon its acceptance of the defendant’s offer, the plaintiff, in effect, made a counteroffer which the defendant was entitled to and did refuse to accept by its conduct in ignoring it (see Josephine & 448 Anthony Corp. v Horwitz, 58 AD2d 643; see also Matter of State Farm Fire & Cas. Co. v Zyburo, 215 AD2d 566, 567; cf. Eldor Contr. Corp. v County of Nassau, 272 AD2d 509; LeCorre v Bijesse Belford Dolewski & DeMicco, 269 AD2d 569, 570). Thus, no contract was created, and the Supreme Court properly granted summary judgment in favor of the defendant and dismissed the complaint. In light of this determination we need not reach the defendant’s remaining contentions. Altman, J.P., Florio, H. Miller and Cozier, JJ., concur.