Opinion
May 8, 1989
Appeal from the Supreme Court, Westchester County (Marbach, J.).
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 N.Y.2d 373; Lawrence v Miller, 86 N.Y. 131; Levine v Trattner, 130 A.D.2d 462). Mangano, J.P., Thompson, Bracken and Eiber, JJ., concur.