D.A.D. Restaurant, Ltd. v. Anthony Operating Corp.

• Decision Date: 04 April 1988
• Citation: D.A.D. Restaurant, Ltd. v. Anthony Operating Corp., 526 N.Y.S.2d 590, 139 A.D.2d 485 (N.Y. App. Div. 1988)
• Parties: D.A.D. RESTAURANT, LTD., Appellant, v. ANTHONY OPERATING CORP., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 590

526 N.Y.S.2d 590

139 A.D.2d 485

D.A.D. RESTAURANT, LTD., Appellant, v. ANTHONY OPERATING CORP., Respondent.

Supreme Court, Appellate Division Second Department.

April 4, 1988.

Carl G. Cohen, Carle Place, for appellant.

Kreines & Engelberg, Great Neck (Warren S. Beckerman, of counsel), for respondent.

Before KUNZEMAN, J.P., and EIBER, SPATT and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action for specific performance of a contract for the sale of real property, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Christ, J.), dated March 9, 1987, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, dated March 16, 1987, entered thereon.

ORDERED that the appeal from the order is dismissed, and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the defendant is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

In this action the plaintiff contends that a contract for the sale of real property arose by reason of its valid exercise of an option agreement which gave the holder the right to purchase the premises for an agreed price. The plaintiff seeks specific performance of the contract. The defendant claims, however, that the option was never properly exercised and that, therefore, the contract for the sale of the premises never came to fruition.

It is well settled that in order to validly exercise an option to purchase real property, the optionee must strictly adhere to the terms and conditions of the option agreement ( see, T.I.P. Holding No. 2 Corp. v. Wicks, 63 A.D.2d 263, 407 N.Y.S.2d 709; Boal v. Smith, 35 A.D.2d 730, 315 N.Y.S.2d 264 affd., 29 N.Y.2d 518, 323 N.Y.S.2d 984, 272 N.E.2d 492; Piazza v. Sutherland, 53 Misc.2d 726, 279 N.Y.S.2d 640). The record reveals that the terms of the option agreement herein required the optionee, in order to exercise the option, to mail notice of its election to exercise the option to the defendant corporation, by certified mail, return receipt requested, at the address set forth in the agreement. As the court correctly noted, however, this was never done. The attempted service of notice regarding the alleged exercise of this option was by a letter...