1319 THIRD AVENUE REALTY CORP v. CHATEAUBRIANT RESTAURANT DEVELOPMENT CO (2005)

Supreme Court, Appellate Division, First Department, New York.

1319 THIRD AVENUE REALTY CORP., Plaintiff-Appellant, v. CHATEAUBRIANT RESTAURANT DEVELOPMENT CO., Defendant-Respondent.

Decided: June 16, 2005

MARLOW, J.P., ELLERIN, NARDELLI, SWEENY, JJ.

The Halperin Law Firm, LLP, New York (Jerome R. Halperin of counsel), for appellant. Rubin Bailin Ortoli Mayer & Baker LLP, New York (Eric Vaughn-Flam of counsel), for respondent.

Order, Supreme Court, New York County (Louis York, J.), entered on or about October 6, 2004, which granted defendant's motion for summary judgment on its counterclaim for specific performance of its option to purchase the subject real property to the extent of directing the parties to enter into a contract of sale for the property so that defendant will have the opportunity to obtain financing for its purchase, unanimously affirmed, with costs.

Inasmuch as the record demonstrates that defendant properly advised plaintiff of its intention to exercise its option to purchase the subject real property, the relief ordered by the motion court was appropriate. While defendant, to prevail fully upon its specific performance claim, will have to show, inter alia, that it is financially able to close the transaction, such a showing was not necessary to the limited relief afforded by the motion court, and indeed could not have fairly been required while plaintiff refused even to enter into a contract of sale.

We have reviewed plaintiff's remaining arguments and find them unavailing.

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