ANTLER v. Norman Rappaport, Defendant-Respondent. (1997)

In an interpleader action pursuant to CPLR 1006(b), the defendant Jamaica 163 Location Corp. appeals (1) from a decision of the Supreme Court, Queens County (Milano, J.), dated March 21, 1997, which determined the plaintiffs' motion, in effect, for summary judgment (a) declaring that the defendant Norman Rappaport was entitled to purchase certain property from the plaintiffs and (b) cancelling a notice of pendency, and (2), as limited by its brief, from so much of an order and judgment (one paper) of the same court, entered April 8, 1997, as (a) declared that the defendant Norman Rappaport was entitled to purchase the subject property, (b) declared that the appellant was not entitled to purchase the subject property, and (c) cancelled the appellant's notice of pendency.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the order and judgment is affirmed insofar as appealed from;  and it is further,

ORDERED that the respondents appearing separately and filing separate briefs are awarded one bill of costs.

 It is well settled that an option contained in a lease which entitles the lessee to purchase the leased premises is a covenant running with the land (see, Rockland-Rockport Lime Co. v. Leary, 203 N.Y. 469, 97 N.E. 43;  Gilbert v. Van Kleeck, 284 App.Div. 611, 617, 132 N.Y.S.2d 580, 2 Rasch, New York Landlord and Tenant § 20:2, at 114 [3d ed.]).  In the absence of an express intent to the contrary in the lease, the option to purchase passes to the assignee upon assignment of the lease, and the assignee may enforce the option in the same manner and to the same extent as the original lessee (see, Gilbert v. Van Kleeck, supra, at 617, 132 N.Y.S.2d 580;  74 N.Y. Jur.2d, Landlord and Tenant, § 632, at 608;  Fresh Pond Rd. Assoc. v. Estate of Schacht, 120 A.D.2d 561, 502 N.Y.S.2d 55).   In the absence of any provision restricting assignment of the lease itself we agree with the Supreme Court that Norman Rappaport, as the assignee, became the “then owner and holder” of the lease pursuant to the option provision in the Lease Modification and Extension Agreement dated October 23, 1988.   Accordingly, Rappaport was entitled to purchase the premises.

 The appellant's contention that it would be inequitable to permit Rappaport to purchase the premises was not raised in the Supreme Court, and we decline to consider it (see, Lavine v. Lavine, 127 A.D.2d 566, 567, 511 N.Y.S.2d 366;  Berman v. Hertz Corp., 127 A.D.2d 809, 810, 511 N.Y.S.2d 938;  Fresh Pond Rd. Assoc. v. Estate of Schacht, supra).   We have reviewed the appellant's remaining contentions, and find that they are without merit.

The issues raised by the plaintiffs, who did not cross-appeal from the judgment, are not properly before this court (see, Ostuni v. East River Tavern, 238 A.D.2d 558, 657 N.Y.S.2d 954;  310 S. Broadway Corp. v. Barrier Gas Serv., 224 A.D.2d 409, 637 N.Y.S.2d 765).

MEMORANDUM BY THE COURT.