CHO v. Eun Joo Cho, et al., Defendants-Respondents. (2005)

Judgment, Supreme Court, New York County (Milton A. Tingling, J.), entered April 29, 2004, after a nonjury trial, dismissing the complaint, and order, same court and Justice, entered August 19, 2004, denying plaintiffs' motion pursuant to CPLR 4404(b) to set aside the judgment, unanimously affirmed, with costs.

Plaintiffs were bound by their open court stipulation (see CPLR 2104;  Citibank, N.A. v. Rathjen, 202 A.D.2d 235, 235, 608 N.Y.S.2d 453 [1994], appeal dismissed 84 N.Y.2d 850, 617 N.Y.S.2d 139, 641 N.E.2d 160 [1994] ) to limit the trial of this action alleging breach of an option agreement to one issue, i.e., whether plaintiffs were ready, willing and able to exercise their option at the contractually appointed time.   Inasmuch as plaintiffs' proof did not show they had access to funds in an amount even close to that necessary to exercise the option, their complaint was properly dismissed.   Indeed, even if, as plaintiffs contend, the amount necessary for the option's exercise was significantly lower than defendants claimed, as plaintiffs' expert would have testified had his proof not been properly excluded in light of plaintiffs' failure to provide defendants a copy of his report in accordance with the court's direction (see CPLR 3126;  Lipin v. Bender, 84 N.Y.2d 562, 571, 620 N.Y.S.2d 744, 644 N.E.2d 1300 [1994];  Red Apple Supermarkets, Inc. v. Malone & Hyde, Inc., 251 A.D.2d 78, 673 N.Y.S.2d 672 [1998] ), plaintiffs' evidence would still have been insufficient to prove their financial ability to exercise the option.

We have considered plaintiffs' remaining contentions and find them unavailing.