| Island Auto Seat Cover Co., Inc. v Minunni |
| 2010 NY Slip Op 00103 [69 AD3d 570] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Island Auto Seat Cover Company, Inc.,Appellant-Respondent, v Vito Minunni et al.,Respondents-Appellants. |
—[*1] Johnson & Langworthy, P.C., Staten Island, N.Y. (Gary W. Johnson and John Z. Marangosof counsel), for respondents-appellants.
In an action, inter alia, for specific performance of an option to purchase real property, theplaintiff appeals from so much of an order of the Supreme Court, Richmond County (Maltese,J.), dated December 1, 2008, as denied its motion for summary judgment directing specificperformance of the option, and the defendants cross-appeal, as limited by their brief, from somuch of the same order as denied their cross motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed, without costs or disbursements.
The plaintiff, Island Auto Seat Cover Company, Inc., as tenant, and the defendants VitoMinunni and Estelle Jane Minunni, as landlords (hereinafter together the defendant landlord)entered into a lease dated October 2000 (hereinafter the lease) for certain commercial space in arear building (hereinafter the demised premises) located on Bay Street in Staten Island(hereinafter the subject property). The lease, which had an expiration date of October 31, 2010,contained an option to purchase the subject property (hereinafter the option) on which thedemised premises was located, for the sum of $350,000, exercisable by providing notice to thedefendant landlord or its successor at any time during the lease term, but no later than six monthsprior to the lease expiration date. The option also provided that the closing of title was to takeplace within 90 days of the date of such notice. It is undisputed that the plaintiff notified thedefendant landlord on or about March 25, 2008, of its intent to exercise the option in an all-cashtransaction. The notice was sent as was required under the option by certified mail, return receiptrequested.
In support of its motion for summary judgment directing specific performance of the option,the plaintiff established, prima facie, that the option contained in the lease is an enforceableagreement (see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78NY2d 88, 91 [1991]; Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d475, 485 [1989], cert denied 498 US 816 [1990]; 160 Chambers St. Realty Corp. vRegister of City of N.Y., 226 AD2d 606, 607 [1996]; Restatement [Second] of Contracts§ 33; cf. Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109-111[1981]), and [*2]that it timely sent notice to the defendantlandlord of its intent to exercise the option in accordance with its terms (hereinafter the notice)(see Weissman v Adler, 187 AD2d 647, 648 [1992]). In opposition to the motion, thedefendants failed to raise a triable issue of fact regarding the enforceability of the option and thetimeliness of the notice. The defendants also failed to refute the plaintiff's allegation that theyrefused to cooperate with the plaintiff in scheduling a closing of title.
The plaintiff, however, failed to establish its prima facie entitlement to judgment as a matterof law on that portion of its complaint seeking specific performance of the option. In order to beentitled to specific performance of a contract, a plaintiff must demonstrate that it was ready,willing, and able to perform its obligations thereunder regardless of a defendant's anticipatorybreach (see Cipriano v Glen CoveLodge #1458, B.P.O.E., 1 NY3d 53, 61 [2003]; cf. Zev v Merman, 134 AD2d555, 557 [1987], affd 73 NY2d 781 [1988]). While the plaintiff was not required todemonstrate an actual tender of performance in light of the defendants' refusal to cooperate inscheduling a closing (see Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997,998 [1983]; Roland v Benson, 30AD3d 398, 399-400 [2006]; Glauber v P. S. F. B. Assoc., 89 AD2d 576 [1982]), toobtain summary judgment directing specific performance, the plaintiff was required todemonstrate financial ability to close during the requisite time period (see Stawski v Epstein,67 AD2d 681 [1979]). Here, the plaintiff's corporate secretary averred in a reply affidavitthat he was ready to proceed with an all-cash transaction with moneys funded by a mortgagetaken on property owned by his mother-in-law and father-in-law. That assertion alone wasinsufficient to demonstrate that the plaintiff had the necessary funding to close (see Johnsonv Phelan, 281 AD2d 394, 395 [2001]; L.I.C. Commercial Corp. v Zirinsky, 142AD2d 713, 716 [1988]; see alsoStojowski v D'Sa, 28 AD3d 645 [2006]; Handy v Manganelli, 181 AD2d 658[1992]; cf. Stawski v Epstein, 67 AD2d at 681). Accordingly, notwithstanding that theoption is enforceable, the plaintiff failed to demonstrate, prima facie, that it was ready, willing,and able to proceed with the sale (seeCorner Assoc. Holdings, LLC v H.V.K. Realty Holding Co., 63 AD3d 774 [2009]; CNR Healthcare Network, Inc. v 86Lefferts Corp., 59 AD3d 486, 488-489 [2009]; Roland v Benson, 30 AD3d at399).
Accordingly, the plaintiff's motion for summary judgment directing specific performance ofthe option was properly denied.
The defendants failed to establish their entitlement to judgment as a matter of law dismissingthe complaint (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852[1985]). Therefore, the Supreme Court properly denied the defendants' cross motion forsummary judgment dismissing the complaint.
The defendants' remaining contentions are without merit. Skelos, J.P., Covello, Leventhaland Roman, JJ., concur.