Toth v. Carver Street Associates

• Decision Date: 22 March 1993
• Citation: Toth v. Carver Street Associates, 595 N.Y.S.2d 236, 191 A.D.2d 631 (N.Y. App. Div. 1993)
• Parties: John TOTH, Respondent, v. CARVER STREET ASSOCIATES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 236

595 N.Y.S.2d 236

191 A.D.2d 631

John TOTH, Respondent, v. CARVER STREET ASSOCIATES, Appellant.

Supreme Court, Appellate Division Second Department.

March 22, 1993.

Neufeld & O'Leary, New York City (David S.J. Neufeld, Denis P. O'Leary, and Douglas S. Trokie, of counsel), for appellant.

Dollinger Gonski Grossman Permut & Hirschhom, Carle Place (Alan Hirschhorn and Michael J. Spithogiannis, of counsel), for respondent.

Before THOMPSON, J.P., and SULLIVAN, O'BRIEN and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action for specific performance of an option to purchase real property, the defendant appeals, as limited by its brief, from (1) so much of a "short form" order of the Supreme Court, Suffolk County (Underwood, J.), dated November 29, 1990, as denied its motion for summary judgment dismissing the complaint, and for summary judgment on its counterclaims, and (2) so much of a resettled order of the same court, dated February 11, 1991, as denied the same relief.

ORDERED that the appeal from the order dated November 29, 1990, is dismissed, as that order was superseded by the order dated February 11, 1991; and it is further,

ORDERED that the order dated February 11, 1991, is modified, on the law, by (1) deleting the provision thereof which denied that branch of the defendant's motion which was for summary judgment dismissing the complaint, and substituting therefor a provision granting that branch of the motion, and (2) deleting the provision thereof denying that branch of the defendant's motion which was for summary judgment on so much of its first counterclaim as was to recover damages in the principal amount of $4698 representing unpaid rent, taxes, and insurance for the month of August 1986, plus interest, and substituting therefor a provision granting that relief; as so modified, the order is affirmed insofar as appealed from; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate judgment in the principal amount of $4698; and it is further,

ORDERED that the appellant is awarded one bill of costs.

The plaintiff operated a business at the defendant's premises under a long-term sublease. On July 6, 1984, the defendant offered the plaintiff a written option to purchase the premises upon specified terms. The option was to expire on July 31, 1984. The plaintiff testified at his deposition that he instructed his attorney to exercise the option on July 30, 1984,...