Robert Garone, respondent, v. Stanley Morabito, defendant, Kenneth Cartalemi, et al., appellants. (2011)

Argued-February 14, 2011

DECISION & ORDER

In an action, inter alia, for specific performance of a contract for the purchase of an interest in real property, the defendants Kenneth Cartalemi and Kenneth J. Cartalemi, LLC, appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated February 23, 2010, which denied their motion for summary judgment on the first and fifth counterclaims declaring that the plaintiff's rights in a certain option to purchase an interest in real property were time-barred and that the option was invalid and unenforceable against them and dismissing the complaint insofar as asserted against them and searched the record and awarded summary judgment to the plaintiff dismissing the first and fifth counterclaims and, in effect, declaring that the plaintiff's rights in a certain option to purchase an interest in real property were not time-barred and that the option and the contract of sale were valid and enforceable against them.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an interlocutory judgment declaring that the plaintiff's rights in a certain option to purchase an interest in real property were not time-barred and that the option and the contract of sale were valid and enforceable against the defendants Kenneth Cartalemi and Kenneth J. Cartalemi, LLC.

For the reasons set forth in the decision and order in the companion appeal (see Cartalemi v. Garone, AD3d, [decided herewith] ), the order is affirmed.

Since the counterclaims sought declaratory relief, we remit the matter to the Supreme Court, Suffolk County, for the entry of an interlocutory judgment declaring that the plaintiff's rights in the option were not time-barred and that the option and the contract of sale are valid and enforceable against the appellants (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).

MASTRO, J.P., SKELOS, LEVENTHAL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court