| Armonk Snack Mart, Inc. v Robert Porpora RealtyCorp. |
| 2016 NY Slip Op 03128 [138 AD3d 1045] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| Armonk Snack Mart, Inc., Formerly Known as FriendlyService New Rochelle, Inc., Appellant, v Robert Porpora Realty Corp. et al.,Respondents, et al., Defendants. |
Dana G. Khalife, Thornwood, NY, Fishman & Decea, Armonk, NY, andWilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY (Robert A.Spolzino of counsel), for appellant (one brief filed).
Bleakley Platt & Schmidt, LLP, White Plains, NY (John P. Hannigan and JustinM. Gardner of counsel), for respondents Robert Porpora Realty Corp., Robert Porpora,and Robert Porpora, Inc.
In an action, inter alia, for specific performance of an option to purchase certain realproperty, the plaintiff appeals from (1) an amended judgment of the Supreme Court,Westchester County (Bellantoni, J.), dated October 3, 2014, which, upon the granting ofthe motion of the defendants Robert Porpora Realty Corp., Robert Porpora, and RobertPorpora, Inc., and the separate motion of the defendants Mitch Nesheiwat and Gas LandPetroleum, Inc., pursuant to CPLR 4401 for judgment as a matter of law, made at theclose of the plaintiff's case, is in favor of the defendants and against it dismissing thecomplaint, and (2) an order of the same court dated September 16, 2015, which denied itsapplication to sign an order to show cause.
Ordered that the amended judgment is affirmed; and it is further
Ordered that the appeal from the order September 16, 2015, is dismissed; and it isfurther,
Ordered that one bill of costs is awarded to the respondents Robert Porpora RealtyCorp., Robert Porpora, and Robert Porpora, Inc.
"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law isappropriate where the trial court finds that, upon the evidence presented, there is norational process by which the fact trier could base a finding in favor of the nonmovingparty" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Figueroa v City of NewYork, 101 AD3d 674 [2012]). "In entertaining such a motion, the trial courtmust view the evidence in the light most favorable to the opponent, affording him or herevery favorable inference which reasonably may be drawn from the evidence" (Gomez v Casiglia, 67 AD3d965, 966 [2009]).
Here, the Supreme Court properly granted the motion of the defendants RobertPorpora Realty Corp., Robert Porpora, and Robert Porpora, Inc., and the separate motionof the defendants Mitch Nesheiwat and Gas Land Petroleum, Inc. (hereinaftercollectively the defendants), [*2]pursuant to CPLR 4401for judgment as a matter of law, made at the close of the plaintiff's case. The plaintifffailed to meet its prima facie burden of demonstrating its entitlement to specificperformance of an option to purchase certain real property because it failed to show thatit was the successor in interest to the party that entered into the option agreement,Friendly Service New Rochelle, Inc. (hereinafter Friendly Service). In any event, even ifthe plaintiff had shown that it was the successor in interest to Friendly Service, it failedto show that it was financially able to purchase the real property in question within areasonable time after entering into the agreement up until the date of trial (see Djukanovic v D'Amico, 40AD3d 576 [2007]; Alipertiv Laurel Links, Ltd., 27 AD3d 675, 676 [2006]; 3M Holding Corp. vWagner, 166 AD2d 580, 581-582 [1990]; Zev v Merman, 134 AD2d 555,557 [1987], affd 73 NY2d 781 [1988]; see also Stojowski v D'Sa, 28 AD3d 645 [2006];Buoninfante v Legacy Dev. USA Corp., 306 AD2d 511 [2003]).
The plaintiff contends that, since the defendants did not raise the affirmative defenseof standing in their respective answers, the Supreme Court erred in determining that itfailed to establish that it was a party to the agreement at issue. This contention is withoutmerit. At trial, the evidence that supported the defendants' contention that the plaintiffwas not the successor in interest to Friendly Service was elicited from the plaintiff's ownwitnesses, without objection from the plaintiff. Where, as here, a variance developsbetween a pleading and proof admitted at the instance or with the acquiescence of aparty, such party cannot later claim that it was surprised or prejudiced (see Murray vCity of New York, 43 NY2d 400, 405 [1977]).
The plaintiff appeals from an order dated September 16, 2015, which denied itsapplication to sign an order to show cause. The order is not appealable as of right (seeCPLR 5701; Matter of Melev Rockland County Bd. of Elections, 108 AD3d 633 [2013]), and we decline togrant leave to appeal. Accordingly, the appeal from the order dated September 16, 2015must be dismissed. Mastro, J.P., Chambers, Roman and Barros, JJ., concur.