Cyber Land, Inc. v. Chon Property Corporation

• Decision Date: 23 January 2007
• Docket Number: 2005-09429.
• Citation: 830 N.Y.S.2d 198,2007 NY Slip Op 00481,36 A.D.3d 748
• Parties: CYBER LAND, INC., Appellant, v. CHON PROPERTY CORPORATION, Defendant and Third-Party Plaintiff-Respondent, and JUDITH PITCH et al., Respondents. YU MING HONG, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

36 A.D.3d 748

830 N.Y.S.2d 198

2007 NY Slip Op 00481

CYBER LAND, INC., Appellant, v. CHON PROPERTY CORPORATION, Defendant and Third-Party Plaintiff-Respondent, and JUDITH PITCH et al., Respondents YU MING HONG, Third-Party Defendant-Respondent.

2005-09429.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided January 23, 2007.

In an action for specific performance and to recover damages for breach of a commercial lease of real property, the plaintiff appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated August 9, 2005, which, inter alia, granted the separate motions of the defendant Chon Property Corporation, the defendants Judith Pitch, individually, and Judith Pitch and Wendy David Burns as trustees of the Wendy David Burns Family Trust, and the third-party defendant for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with one bill of costs to the respondents, appearing separately and filing separate briefs.

The plaintiff was the tenant of commercial premises in Flushing by virtue of an assignment of a 20-year lease which provided, among other things, that rent must be paid by the tenant on the first of every month. The lease also contained a nonwaiver clause, and gave the tenant a right of first refusal should the premises be offered for sale, on the condition that the tenant not be in default during the term of the lease. During the term of its lease, the tenant frequently paid its rent late and failed to pay the full rent that was due in August 2003. The property was sold to the defendant third-party plaintiff Chon Property Corporation (hereinafter Chon). The plaintiff was not allowed to exercise its right of first refusal with regard to the subject premises. The plaintiff subsequently commenced this action against the defendants seeking specific performance and damages. Chon thereafter brought a third-party action against the attorney who represented it relative to the purchase of the property, seeking to recover damages for legal malpractice. The defendants and the third-party defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motions.

The defendants and third-party defendant made a prima facie showing of their entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition, the plaintiff failed to...