| Yuen v Kwan Kam Cheng |
| 2010 NY Slip Op 00579 [69 AD3d 536] |
| January 28, 2010 |
| Appellate Division, First Department |
| Cindy Yuen, Respondent, v Kwan Kam Cheng et al.,Appellants. |
—[*1] Edmonds & Co., P.C., New York (Douglas D. Aronin of counsel), for respondent.
Appeal from order Supreme Court, New York County (Ira Gammerman, J.H.O.), enteredMay 16, 2008, which, inter alia, granted plaintiff's motion for summary judgment on her claimfor breach of contract, deemed an appeal from judgment (CPLR 5501 [c]), same court andJudicial Hearing Officer, entered July 3, 2008, awarding plaintiff the total amount of$133,164.53, and, so considered, said judgment unanimously affirmed, with costs.
Defendants' argument on appeal that the judicial hearing officer lacked jurisdiction to hearthe motion for summary judgment has been waived by their complete and active participation inthe hearing and resolution of the motion without objection (see e.g. Morton v BrookhavenMem. Hosp., 308 AD2d 566 [2003]).
On the merits, the motion court correctly determined that plaintiff was entitled to the refundof her down payment. The contract contained no time limit within which plaintiff had to cancelthe purchase agreement, and therefore a reasonable time for cancellation thereunder is implied(see e.g. Combs v Lewis, 1 AD3d236 [2003], lv denied 3 NY3d 610 [2004]). Plaintiff's notice of cancellation, basedon the bank's denial of the mortgage application, was reasonable. Additionally, any breaches ofthe contract by plaintiff were unrelated to the reasons for the denial of the mortgage application(see e.g. Gorgoglione v Gillenson,47 AD3d 472 [2008]).
We have considered defendants' remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Manzanet-Daniels and RomÁn, JJ.