ORDERED that the judgment is modified, on the law, by adding thereto a provision declaring that the defendant's cancellation of the contract was valid; as so modified, the judgment is affirmed, with costs to the defendant.
On January 24, 2001, the defendant contracted to sell a certain parcel of real property to the plaintiffs. Thereafter, the title company determined that the title was uninsurable. In response, the defendant, through his attorney, cancelled the contract. The plaintiffs rejected the cancellation, but did not state that they were willing to close on the property "as is."
The defendant established his entitlement to dismissal of the complaint by way of documentary evidence showing that he properly cancelled the contract in accordance with paragraph 22 of the contract and paragraph 30 of the rider to the contract. In response, the plaintiffs failed to show the existence of a factual question requiring the denial of the motion to dismiss the complaint. Accordingly, the Supreme Court properly granted the motion (see Cipriano v. Glen Cove Lodge # 1458, B.P.O.E., 297 A.D.2d 649: see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).
Since the plaintiffs' third and fourth causes of action sought a declaration as to the validity of the purported cancellation, the Supreme Court should have made the appropriate declaration in favor of the defendant (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
FLORIO, J.P., FRIEDMANN, McGINITY and TOWNES, JJ., concur.