101 Misc. 2d 871 | N.Y. Sup. Ct. | 1979
OPINION OF THE COURT
The defendants move for summary judgment dismissing the plaintiffs’ complaint and granting judgment in their favor upon their counterclaim. Plaintiffs have requested that the court grant summary judgment against defendants.
The action is by vendors of real property for specific performance of a contract, and the counterclaim is for return of the vendees’ $1,000 deposit. The contract was executed by the
The position of plaintiffs on this motion is that they were at all times ready, willing and able to complete the sale and that the defendants did not use diligent efforts to obtain a mortgage. More particularly, plaintiffs take the position that the term "conventional mortgage” envisioned a mortgage for a term unspecified by the plaintiffs at any interest rate that was allowed to be charged by a Federally chartered bank, even though that interest rate might be in excess of New York State’s usury laws. The defendants take the position that the term "conventional mortgage” is so ambiguous as to render the contract a nullity since there was no meeting of the minds. In the alternative, defendants argue. that the term "conventional mortgage” means a mortgage for a term of 20 years at the maximum rate of interest permitted by New York State’s usury laws. Defendants allege that they requested such a mortgage from two different banks and were refused, and that this constituted diligent effort.
The omission of a material element from a contract renders the contract unenforceable since there has been no meeting of the minds (Willmott v Giarraputo, 5 NY2d 250, 253; Matter of Smith v Department of State of State of N. Y., 3 AD2d 954, 955). When the term "conventional mortgage” is used in a clause such as the instant one, there should also be set forth the term of the mortgage and at what interest rate the mortgage shall be (Donato v Baltrusaitis, 56 Misc 2d 935, 936). Omitting the terms of the mortgage renders a contract unenforceable (Willmott v Giarraputo, supra, p 253). The court
The motion of the defendants for an order granting summary judgment dismissing the plaintiffs’ complaint and awarding summary judgment upon their counterclaim shall be granted, without motion costs. The cross motion of the plaintiffs for summary judgment shall be denied, without costs.