ROZINA v. CASA 74TH DEVELOPMENT LLC (2011)

Order and judgment (one paper), Supreme Court, New York County (Marcy S. Friedman, J.), entered September 7, 2010, which, to the extent appealed from as limited by the briefs, granted defendant sellers' motion for summary judgment dismissing the first through fourth causes of action, for a declaration that the parties' option agreement is void pursuant to EPTL 9–1.1(b) and the return of plaintiff purchasers' deposit, and the ninth cause of action, alleging that the subject unit materially deviated from the specifications contained in the offering plan and option agreement, and for summary judgment on their counterclaims for attorney's fees and declaratory relief, and declared, among other things, that the option agreement is enforceable and that defendant Casa is entitled to retain the deposit, unanimously modified, on the law, to deny the part of the motion seeking summary judgment dismissing the ninth cause of action, and to reinstate the complaint, as so limited, and otherwise affirmed, without costs.

The option agreement did not violate the rule against remote vesting (EPTL 9–1.1[b] ). Although a closing date was not specified in either the option agreement or the offering plan, which was incorporated by reference and made part of the option agreement, the closing was to occur with or after the completion of several contingencies, all of which were to occur by January 2010. Nothing in the option agreement or the offering plan demonstrated an intention that the option be held open beyond the 21–year period in EPTL 9–1.1(b). It must, therefore, be presumed that the parties intended that the option would be executed within that time (see EPTL 9–1.3; see also Kaiser–Haidri v. Battery Place Green, LLC, 85 AD3d 730, 733 [2011] ). Accordingly, the court properly granted that branch of defendants' motion for summary judgment dismissing plaintiffs' first through fourth causes of action.

Defendants, however, failed to make a prima facie showing of entitlement to judgment as a matter of law with respect to the ninth cause of action, since they never addressed in their moving papers whether there was any deviation in the unit. Accordingly, the motion should have been denied with respect to this claim, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ). Defendants could not cure the defect in their moving papers by submitting their architect's affidavit with their reply (see Ford v. Weishaus, 86 AD3d 421, 422 [2011] ).