Hussain v Gomez

[*1] Hussain v Gomez 2004 NY Slip Op 51638(U) Decided on December 15, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-410 S C

MUDASSAR HUSSAIN and CYNTHIA HUSSAIN, Respondents,

against

ANA FRANCISCA GOMEZ, Appellant.

Appeal by defendant from an order of the District Court, Suffolk County

(G. Murphy, J.), entered February 11, 2004, which granted plaintiffs' motion for
summary judgment, set the matter down for an inquest as to reasonable attorney's fees and denied defendant's cross motion for summary judgment dismissing the complaint.

Order unanimously affirmed without costs.

Plaintiffs, as sellers, instituted this action to recover the downpayment paid by defendant, as purchaser, in accordance with a contract of sale for a one-family
residence, together with reasonable attorney's fees as provided for in said contract. The mortgage contingency clause in the standard form contract of sale granted to defendant the right to cancel the contract and obtain a refund of her downpayment in the event that a commitment in accordance with the terms of the contract was not issued within 45 days on condition that she notify sellers of same within 5 business days following said 45-day period. The clause further stated that if purchaser failed to timely notify sellers, her right to cancel the contract and receive a refund of the downpayment shall be deemed waived. The mortgage clause in the rider to the contract of sale granted sellers an option to cancel the contract of sale in the event purchaser failed to provide sellers with a firm mortgage commitment within the time period set forth in said clause and required sellers to return the downpayment to purchaser upon such cancellation.

Inasmuch as said clauses deal separately with the respective rights of the parties to cancel [*2]the contract of sale, paragraph 23 of the rider, which stated that in the event of any discrepancy between the contract and the rider, the rider's clauses will be deemed superseding, is not applicable. In view of the foregoing, and since neither party exercised their right to cancel pursuant to the respective clauses, purchaser, by failing to provide timely notice of her inability to obtain a firm commitment and exercise
her option to cancel the contract, forfeited her right to the return of her downpayment. Thus, the court's award of summary judgment in favor of plaintiffs and its denial of defendant's cross motion for summary judgment should not be disturbed.
Decision Date: December 15, 2004