FUCARINO v. TIDE WAY HOMES, INC

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the cross-appeal is deemed withdrawn; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The contract of sale provided that "[i]n the event the Seller is not ready to close by December 1, 2000, then the Purchaser shall have the right to terminate this contract." The contract further provided that "[n]either this contract nor any provision thereof may be waived, changed or cancelled except in writing."

It is undisputed that the defendant sellers were not ready to close by December 1, 2000. The defendants claim that they were ready to close by the end of December 2000, before the plaintiffs exercised their option to cancel on January 19, 2001. However, the contract, by providing for its termination on the specified date, did not allow any further adjournments, however reasonable the period (see Kulanski v. Celia Homes, 7 A.D.2d 1006). Further, there is no evidence that the plaintiffs waived their right to cancel (see Edward v. Intl. Bus. Machs. Corp., 174 A.D.2d 863).

The defendants' remaining contentions are without merit.

ALTMAN, J.P., GOLDSTEIN, McGINITY and MASTRO, JJ., concur.