Defonte v. Bockowski

Summary

The Appellate Division, Second Department, affirmed an order granting summary judgment dismissing the plaintiffs' claims for specific performance and breach of contract concerning a real estate sale. The court held that the mortgage contingency clause was a condition precedent and that the plaintiffs failed to obtain a written mortgage commitment by the amended contract's deadline, permitting the seller to cancel the agreement.

Holdings

1. The mortgage-contingency clause constituted a condition precedent to the contract of sale, and the seller established that the purchasers failed to obtain a written mortgage commitment by February 10, 2017, thereby supporting cancellation under the amended agreement.
2. The plaintiffs failed to raise a triable issue of fact or offer credible evidence showing that the seller improperly exercised the option to cancel; therefore, summary judgment dismissing the complaint was proper.
3. The plaintiffs' remaining contention was not reviewable because it was raised for the first time on appeal.

Questions Presented

1. Whether the mortgage-contingency provision in the amended contract of sale created a condition precedent and authorized the seller to cancel when the purchasers failed to obtain a written mortgage commitment by the specified date.
2. Whether the plaintiffs raised a triable issue of fact concerning the seller's alleged breach of the amended contract of sale.
3. Whether the plaintiffs' remaining appellate contention was reviewable when it was raised for the first time on appeal.

Disposition

affirmed