Gallagher Removal Service, Inc. v. Duchnowski
| Decision Date | 13 January 1992 |
| Citation | 578 N.Y.S.2d 584,179 A.D.2d 622 |
| Parties | GALLAGHER REMOVAL SERVICE, INC., Appellant, v. John DUCHNOWSKI, etc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Faruolo, Caputi, Weintraub & Neary, Huntington (Brian P. Neary, of counsel), for appellant.
Flectcher, Dunne, Sibell & Migatz, P.C., Manhasset (Bruce W. Migatz, of counsel), for respondent.
Before KUNZEMAN, J.P., and BALLETTA, MILLER and RITTER, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, for specific performance of an option to purchase real property, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Morrison, J.), entered April 13, 1990, which, upon granting the defendant's motion for summary judgment, dismissed the complaint, and canceled the notice of pendency filed by the plaintiff against the subject property.
ORDERED that the order and judgment is affirmed, with costs.
The plaintiff, Gallagher Removal Service (hereinafter Gallagher), commenced the instant action against John Duchnowski in his individual capacity, as the Executor of the Estate of Tony Duchnowski, and as the Administrator of the Estate of Alexandra Duchnowski for specific performance of an option to purchase property known as 18 Roosevelt Avenue, in Roslyn, for $14,000. In the alternative, the plaintiff sought damages arising from the defendant's rejection of Gallagher's attempt to exercise its option to purchase the property. In addition, Gallagher filed a notice of pendency against 18 Roosevelt Avenue.
The defendant subsequently moved for summary judgment dismissing the complaint and canceling the notice of pendency filed against the property. The Supreme Court granted the defendant's motion on the ground that the option agreement had terminated by the time Gallagher attempted to exercise it.
The option agreement, which was made in 1962, provided that it would no longer be of force or effect upon the termination of Gallagher's "present business activities". In 1962, Gallagher's business activities included the servicing of several rubbish routes on Long Island, with over 5,200 residential and 250 commercial customers, coupled with the employment of 10 garbage trucks and 20 employees. By the time Gallagher attempted to exercise the option agreement in 1986, it had ceased its rubbish removal activities as they existed in 1962. While Gallagher did operate a one-route, one-truck rubbish removal service in New Hampshire at...
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