Fucarino v. Tide Way Homes, Inc. , 760 N.Y.S.2d 862 ( 2003 )

—In an action, inter aha, for the return of a down payment on a contract for the sale of real property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Carter, J.), dated March 6, 2002, as granted that branch of the plaintiffs’ motion which was for summary judgment on the cause of action to recover the plaintiffs’ down payment and denied their cross motion for summary judgment dismissing the complaint, and the plaintiffs cross-appeal from so much of the order as denied that branch of their motion which was for leave to amend the complaint.

Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that the cross-appeal is deemed withdrawn; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs.

The contract of sale provided that “[i]n the event the Seller is not ready to close by December 1, 2000, then the Purchaser shall have the right to terminate this contract.” The contract further provided that “[n] either this contract nor any provision thereof may be waived, changed or cancelled except in writing.”

It is undisputed that the defendant sellers were not ready to close by December 1, 2000. The defendants claim that they were ready to close by the end of December 2000, before the plaintiffs exercised their option to cancel on January 19, 2001. However, the contract, by providing for its termination on the specified date, did not allow any further adjournments, however reasonable the period (see Kulanski v Celia Homes, 7 AD2d 1006 [1959]). Further, there is no evidence that the plaintiffs waived their right to cancel (see Edwards v International Bus. Machs. Corp., 174 AD2d 863 [1991]).

The defendants’ remaining contentions are without merit. Altman, J.P., Goldstein, McGinity and Mastro, JJ., concur.