BARBARA ANNE INC v. SMITHHAVEN CENTER ASSOCIATES LLC (2000)

In an action, inter alia, to recover damages for breach of contract, the defendants appeal (1) from an order of the Supreme Court, Suffolk County (Henry, J.), entered May 17, 1999, which granted the plaintiff's motion for partial summary judgment on the issue of liability on the first cause of action and denied their cross motion for summary judgment dismissing the complaint, and (2), as limited by their brief, from so much of an order of the same court, entered November 1, 1999, as, upon renewal, granted the plaintiff's motion for partial summary judgment on the issue of liability on the first cause of action to the limited extent of directing a hearing on the issue of whether the defendants unreasonably refused to consent to the site location for the plaintiff's kiosk.

ORDERED that the appeal from the order entered May 17, 1999, is dismissed, as that order was superseded by the order entered November 1, 1999;  and it is further,

ORDERED that on the court's own motion, the defendants' notice of appeal from the order entered November 1, 1999, is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[c] );  and it is further,

ORDERED that the order entered November 1, 1999, is reversed insofar as appealed from, on the law, the order entered May 17, 1999, is vacated, the motion is denied, the cross motion is granted, and the complaint is dismissed;  and it is further,

ORDERED that the defendants are awarded one bill of costs.

The terms of the lease and the circumstances surrounding its signing establish that the parties intended a specific location inside the Smith Haven Mall.   The plaintiff's failure to obtain a building permit for that particular location excused the defendants' performance under the lease (see, 67 Wall St. Co. v. Franklin Nat. Bank, 37 N.Y.2d 245, 371 N.Y.S.2d 915, 333 N.E.2d 184).

MEMORANDUM BY THE COURT.