Toth v. Carver Street Associates

Decision Date22 March 1993
Citation191 A.D.2d 631,595 N.Y.S.2d 236
PartiesJohn TOTH, Respondent, v. CARVER STREET ASSOCIATES, Appellant.
CourtNew York Supreme Court — Appellate Division

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ORDERED that the appeal from the order dated November 29, 1990, is dismissed, as that order was superseded by the order dated February 11, 1991; and it is further,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

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27 cases
  • Shants Inc. v. Capital One N.A.
    • United States
    • New York Supreme Court
    • January 31, 2013
    ...Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 A.D.2d 380, 615 N.Y.S.2d 702 (2d Dept.1994); Toth v. Carver Street Associates, 191 A.D.2d 631, 595 N.Y.S.2d 236 (2d Dept.1993). On such a motion the court must draw all reasonable inferences in favor of the nonmoving party. Nicklas v. Ted......
  • Petion v. Uwechue, 2010 NY Slip Op 30576(U) (N.Y. Sup. Ct. 3/15/2010)
    • United States
    • New York Supreme Court
    • March 15, 2010
    ...must be evidentiary proof in support of the allegations. Fleet Credit Corp. v Harvey Hutter & Co., Inc., 207 A.D.2d 380; Toth v Carver Street Associates, 191 A.D.2d 631. If a party defends a motion by resort to CPLR § 3212(f), that is, the party has a defense sufficient to defeat the motion......
  • Alban v. Cornell Univ.
    • United States
    • New York Supreme Court
    • June 11, 2015
    ...Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 A.D.2d 380, 615 N.Y.S.2d 702 (2d Dept.1994) ; Toth v. Carver Street Associates, 191 A.D.2d 631, 595 N.Y.S.2d 236 (2d Dept.1993). Nor can mere speculation serve to defeat the motion. Pluhar v. Town of Southampton, 29 A.D.3d 975, 816 N.Y.S.......
  • Cohen v. Companion Life Ins. Co.
    • United States
    • New York Supreme Court
    • June 13, 2017
    ...and the opposing party must provide more than a mere reiteration of those facts contained in the pleadings ( Toth v. Carver Street Associates, 191 A.D.2d 631 [2d Dept 1993] ). When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to de......
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