James v. James — 205 A.D.2d 735

Majority

p. 735

Alphaeus James et al., Respondents, v Audrey James et al., Appellants.

[614 NYS2d 907]

In an action, inter alia, for a judgment declaring that the defendants are in default on a contract of sale of real property, Audrey James and Laura Mosley appeal from a judgment of the Supreme Court, Kings County (Dowd, J.), dated November 18, 1992, which, after a

p. 736

framed issue hearing (Cannizzaro, J.H.O.), declared that they were in default on the contract of sale, terminated the contract of sale, and authorized the escrowee to release the escrow deposit to the plaintiffs.

Ordered that the judgment is affirmed, without costs or disbursements.

Contrary to the appellants’ claim, there was ample evidence that their bad faith resulting in their loss of a mortgage commitment warranted the forfeiture of their downpayment on the contract of sale (see, Falk v Goodman, 7 NY2d 87 , 90; BTS, Inc. v Webny Corp., 157 AD2d 638 , 639; Silva v Celella, 153 AD2d 847 , 848). The plaintiffs, by letter dated May 28, 1991, specified that time was of the essence and directed a June 10, 1991, closing date. That notice was reasonable (see, Mohen v Mooney, 162 AD2d 664 , 665; Sohayegh v Oberlander, 155 AD2d 436 ; Zev v Merman, 134 AD2d 555 , 557, affd 73 NY2d 781 ). Bracken, J. P., Miller, Copertino and Hart, JJ., concur.

Cases cited

Falk v. Goodman 7 NY2d 87 N.Y. 1959-12-30 at 90 p. 736
BTS, Inc. v. Webny Corp. 157 AD2d 638 N.Y. App. Div. 1990-01-08 at 639 p. 736
Silva v. Celella 153 AD2d 847 N.Y. App. Div. 1989-09-11 at 848 p. 736
Mohen v. Mooney 162 AD2d 664 N.Y. App. Div. 1990-06-25 at 665 p. 736
Sohayegh v. Oberlander 155 AD2d 436 N.Y. App. Div. 1989-11-06 p. 736
Zev v. Merman 134 AD2d 555 N.Y. App. Div. 1987-11-30 at 557 p. 736
Zev v. Merman 73 NY2d 781 N.Y. 1988-11-29 p. 736