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Yuen v. Cheng

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 28, 2010

CINDY YUEN, PLAINTIFF-RESPONDENT,
v.
KWAN KAM CHENG, ET AL., DEFENDANTS-APPELLANTS.

Appeal from order Supreme Court, New York County (Ira Gammerman, JHO), entered May 16, 2008, which, inter alia, granted plaintiff's motion for summary judgment on her claim for breach of contract, deemed an appeal from judgment (CPLR 5501[c]), same court and JHO, entered July 3, 2008, awarding plaintiff the total amount of $133,164.53, and, so considered, said judgment unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Sweeny, Moskowitz, Manzanet-Daniels, RomÁn, JJ.

108379/06

Defendants' argument on appeal that the judicial hearing officer lacked jurisdiction to hear the motion for summary judgment has been waived by their complete and active participation in the hearing and resolution of the motion without objection (see e.g. Morton v Brookhaven Mem. Hosp., 308 AD2d 566 [2003]).

On the merits, the motion court correctly determined that plaintiff was entitled to the refund of her down payment. The contract contained no time limit within which plaintiff had to cancel the purchase agreement, and therefore a reasonable time for cancellation thereunder is implied (see e.g. Combs v Lewis, 1 AD3d 236 [2003], lv denied 3 NY3d 610 [2004]). Plaintiff's notice of cancellation, based on the bank's denial of the mortgage application, was reasonable. Additionally, any breaches of the contract by plaintiff were unrelated to the reasons for the denial of the mortgage application (see e.g. Gorgolione v Gillenson, 47 AD3d 472 [2008]).

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100128

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