Bryan v. ESP Contracting Corp.

— Order, Appellate Term, First Department (Ostrau, P. J., Parness and Miller, JJ.) entered on or about July 15, 1991, which reversed a judgment of the Civil Court, New York County (Bernard Burstein, J.) *428entered January 29, 1990, granting plaintiff summary judgment and awarding plaintiff attorneys’ fees pursuant to 22 NYCRR 130-1.1, unanimously modified, on the law, to reinstate so much of the judgment of the Civil Court as awarded plaintiff $10,000, together with interest of $750 and costs and disbursements of $172.50, and otherwise affirmed, with costs.

The contract of sale unequivocally gave plaintiff purchaser the right to cancel in the event that "the seller is unable for any reason other than purchaser’s default, to close on or before October 31, 1988”. The failure to close was not due to any default on plaintiff’s part, defendants having ordered a release of the down payment from escrow in accordance with the contract after expressly accepting the deficient mortgage commitment obtained by plaintiff. Moreover, plaintiff’s failure to obtain a commitment in the amount specified in the contract would not in any event have entitled defendants to withhold the down payment. The parties’ rights were fixed when plaintiff sent defendants a notice of cancellation, and the settlement negotiations they undertook thereafter are irrelevant (see, Flaherty v Elber Constr. Corp., 149 AD2d 655, 657). Concur — Carro, J. P., Milonas, Kupferman, Asch and Smith, JJ.