| Matter of Lamberti v Angiolillo |
| 2010 NY Slip Op 03846 [73 AD3d 463] |
| May 6, 2010 |
| Appellate Division, First Department |
| In the Matter of Frank Gaetano Lamberti,Petitioner, v Glenn Angiolillo, Appellant, and Louis Marinelli, Respondent, et al.,Respondent. |
—[*1] Joseph A. Maria, White Plains, for Louis Marinelli, respondent.
Decree, Surrogate's Court, Westchester County (Anthony A. Scarpino, Jr., S.), entered on orabout April 20, 2009, directing petitioner to specifically perform under an option contract andtransfer equal shares of a partnership's interest in real property to respondents Glenn Angiolilloand Marinelli in exchange for payment equal to the appraised value of the property, unanimouslyaffirmed, without costs.
General principles governing option agreements require strict compliance with the termssetting forth the time and manner of the option's exercise (see Agostino v Soufer, 12 AD3d 204, 205 [2004]; Urban Archaeology Ltd. v Dencorp Invs.,Inc., 12 AD3d 96, 104 [2004]). However, a party to an option contract may waive itsright to insist upon strict compliance with those terms, either expressly or by its conduct (see Ballston Ave. Dev. v Wolf, 45AD3d 1032, 1033 [2007]; Kenyon& Kenyon v Logany, LLC, 33 AD3d 538 [2006]). Waiver of an established contractualright "requires no more than the voluntary and intentional abandonment of a known right which,but for the waiver, would have been enforceable" (Nassau Trust Co. v Montrose ConcreteProds. Corp., 56 NY2d 175, 184 [1982]).
Glenn Angiolillo waived his right to insist upon strict compliance with the underlying optionagreement's terms setting forth the time period for exercising an option and the purchase price ofthe subject property. Both in correspondence in the record and in testimony before the court, hedemonstrated his agreement to extend the option period.
Although the option contract required modifications to be in a writing signed by all parties,the evidence of record shows that by their conduct, the parties ratified numerous modifications totheir contract, such as to the terms setting forth the time period for the exercise of options topurchase the property and to the purchase price itself (see Restatement [Second] ofContracts § 209, Comment a; § 210, Comment c).[*2]
The Surrogate's Court did not abuse its discretion byinvoking its equitable authority to grant specific performance of the underlying agreement(see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 415 [2001]). There was avalid contract, the optionees had substantially performed thereunder and were capable ofperforming their remaining obligations, the optionor was able to perform its obligations, andthere was no adequate remedy at law. In its grant of equitable relief, the court properly placedthe parties, to the extent possible, in the positions they would have occupied had the contractbeen performed according to its terms, granting no party superior rights than would have beenenjoyed had there been proper performance (see F & F Rest. Corp. v Wells, Goode &Benefit, 61 NY2d 496, 502 [1984]; Stephens v Messing, 162 AD2d 352, 354[1990]). Concur—Mazzarelli, J.P., Freedman, Richter and Manzanet-Daniels, JJ.