| Corner Assoc. Holdings, LLC v H.V.K. Realty Holding Co. |
| 2009 NY Slip Op 04850 [63 AD3d 774] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Corner Associates Holdings, LLC, Appellant, v H.V.K.Realty Holding Co. et al., Respondents. |
—[*1] Anthony J. Piacentini, Port Washington, N.Y., for respondents.
In an action, inter alia, for specific performance of an option to purchase real property, whichwas consolidated with a holdover proceeding, the plaintiff appeals, as limited by its brief, fromso much of a judgment of the Supreme Court, Queens County (Risi, J.H.O.), dated June 25,2008, as, after a nonjury trial, dismissed the cause of action for specific performance, in effect,granted the defendants' petition to evict it from the subject real property, and awarded possessionof the real property to the defendants. By decision and order on motion of this Court dated May22, 2008 [2008 NY Slip Op 72620(U)], enforcement of the judgment was stayed.
Ordered that the judgment is reversed insofar as appealed from, on the facts, with costs, thepetition is denied, the cause of action for specific performance is reinstated, and the matter isremitted to the Supreme Court, Queens County, for entry of an appropriate amended judgment infavor of the plaintiff and against the defendants on the cause of action for specific performanceof the option agreement.
In 1985 the defendants leased certain real property (hereinafter the premises) to the plaintiff'spredecessor Corner Associates, Inc. (hereinafter Corner), for a term of 25 years pursuant to awritten lease which, inter alia, conferred upon the tenant the option to purchase the premises forthe sum of $775,000. In 2003 Corner assigned its rights as tenant under the lease to the plaintiff.Prior to the expiration of the lease, the plaintiff orally exercised the option to purchase, but thedefendants refused to sell. The plaintiff sought to compel specific performance of the option topurchase and the defendants thereafter commenced a holdover proceeding to evict the plaintifffrom the premises. After a consolidated nonjury trial, the Supreme Court dismissed the plaintiff'scomplaint, awarded possession of the premises to the defendants, and permitted the eviction ofthe plaintiff.
"As this case was tried to the court, without a jury, this Court's power to review the evidenceis as broad as that of the trial court, with appropriate regard given to the decision of the trialjudge who was in a position to assess the credibility of the witnesses" (Singh v Atakhanian, 31 AD3d425, 426 [2006][internal quotation marks omitted]; see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). The evidence attrial established that the plaintiff validly exercised its option to purchase the [*2]premises, as the lease did not specify the manner in which theoption was to be exercised (see Caridadof Woodhaven Rest. Corp. v Arniotis, 17 AD3d 618, 619 [2005]; LaPonte v Dunn, 17 AD3d 539[2005]; Morton's of Chicago/Great Neck v Crab House, 297 AD2d 335, 337 [2002]).Furthermore, the evidence established that the plaintiff was ready, willing, and able to proceedwith the sale (see Roland v Benson,30 AD3d 398, 399-400 [2006]; cf. Huntington Min. Holdings v Cottontail Plaza,60 NY2d 997, 998 [1983]; 3M Holding Corp. v Wagner, 166 AD2d 580 [1990];Madison Invs. v Cohoes Assoc., 176 AD2d 1021, 1022 [1991]). As the option topurchase was not explicitly conditioned on the plaintiff's compliance with the other terms in thelease (cf. Singh v Atakhanian, 31AD3d 425 [2006]), the Supreme Court erred in finding that the plaintiff failed to exercise itsoption to purchase. Accordingly, the Supreme Court should have awarded specific performanceto the plaintiff.
In light of the foregoing determination, we need not address the plaintiff's remainingcontentions. Fisher, J.P., Miller, Chambers and Austin, JJ., concur.