| Ballston Ave. Dev. v Wolf |
| 2007 NY Slip Op 08344 [45 AD3d 1032] |
| November 8, 2007 |
| Appellate Division, Third Department |
| Ballston Avenue Development, Respondent, v Karl Wolf et al.,Appellants. |
—[*1] King, Adang & Arpey, Saratoga Springs (John W. Arpey of counsel), forrespondent.
Mugglin, J. Appeal from an order of the Supreme Court (Nolan, Jr., J.), entered July 11, 2006in Saratoga County, which, among other things, denied defendants' motion for summaryjudgment dismissing the complaint.
In 2004, defendants Karl Wolf, Susan Wolf and Wolf Hi-Roc Lanes, Inc. (hereinaftercollectively referred to as defendants) granted plaintiff a 12-month option to buy a bowlingcenter known as Hi-Roc Bowling Lanes located in the City of Saratoga Springs, SaratogaCounty, for the sum of $3.24 million. The agreement provided, among other things, that theoption could be extended for an additional period of 12 months by written notice no later than 30days prior to the expiration of the option and the payment of $10,000. Shortly thereafter, plaintiffapplied for the necessary special use permits to construct a mixed use development, including150 condominiums, commercial buildings and an underground parking facility. On June 17,2005, two days after plaintiff secured its special use permit, agents of plaintiff met with arepresentative of defendants to discuss the steps necessary to obtain final approval for the projectand the necessity for an extension of the option agreement for that purpose. At the [*2]meeting, defendants' representative allegedly informed plaintiff'srepresentatives that an extension of the option contract would be permissible. However, in July2005, when plaintiff tendered the additional $10,000 to extend the option contract, plaintiff wasinformed that the option had expired and that defendants had contracted to sell the property todefendant Frank J. Parillo.
Following commencement of this action seeking, among other things, specific performance,defendants moved for summary judgment. In response, plaintiff cross-moved for summaryjudgment on the cause of action seeking specific performance and for dismissal of defendants'counterclaim which asserted that plaintiff's action was frivolous and sought sanctions pursuant to22 NYCRR 130-1.1. Except for the dismissal of defendants' counterclaim for sanctions, SupremeCourt denied the respective motions. Defendants and Parillo now appeal.
We affirm. Defendants assert that they did not waive their right to enforce the specific termsof the option agreement, including the provision of timely written notice to extend it and,therefore, are entitled to summary judgment dismissing plaintiff's complaint. We disagree.Although strict compliance with the terms of an option contract is required (see Matter of Cornerstone Realty Group,LLC v County of Greene, 28 AD3d 1033, 1035-1036 [2006]), a party to a contract maywaive strict compliance with its terms (see AXA Global Risks U.S. Ins. Co. v SweetAssoc., 302 AD2d 844, 846 [2003]). Whether defendants' representative waived compliancewith the written notice requirement to extend the option contract hinges on the resolution of thecredibility of the various witnesses. Thus, Supreme Court correctly determined this to be an issueof fact which precludes summary judgment (see Rockefeller v Albany Welding Supply Co., 3 AD3d 753[2004]).
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed,with costs.