In Gupta v. 211 St. Realty Corp., 16 AD3d 309 (1st Dept 2005) the plaintiff entered into a contract as purchaser with defendant as seller for the purchase of real property located in the Bronx. The contract also contained a mortgage contingency that obligated the purchaser to obtain a conventional mortgage commitment in the amount of $ 600,000 on or before October 15, 2002 and provide the seller with a copy of the written commitment when received. The mortgage contingency clause further provided that: "In the event that such a commitment is not issued on or before the date set forth above, and unless such date is extended in writing by the parties hereto or unless Purchaser has accepted a commitment that does not comply with the [above terms], the Purchaser may cancel this contract." (Gupta, 16 AD3d at 310.) The October 15 date passed, but no action was apparently taken by either party. By letter dated December 10, 2002, defendant's counsel advised plaintiff's counsel that, since no mortgage commitment had been received, his client elected to cancel the contract and return the down payment. Plaintiff's counsel responded that a mortgage commitment dated December 5, 2002 had been received, and later sent another letter demanding the scheduling of a closing, followed by a time of the essence letter. The Appellate Division reversed the Supreme Court's denial of plaintiff's motion for summary judgment for specific performance. Plaintiff undisputedly failed to comply with the requirements of the mortgage contingency clause within the time limits imposed by the contract. Neither did plaintiff seek an extension of time within which to comply or invoke his right to cancel the contract. The Appellate Division reasoned, "However, as time was not of the essence when defendant attempted to cancel the contract in December 2002, there was no basis to hold plaintiff in default. Indeed, mere delay in performance will not be considered as grounds for rescission unless time is of the essence." (Gupta, 16 AD3d at 311.)