ALEXANDROS TSOULIS PLAINTIFF RESPONDENT APPELLANT v. ABBOTT BROS II STEAK OUT INC DEFENDANT APPELLANT RESPONDENT

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Supreme Court, Appellate Division, Fourth Department, New York.

ALEXANDROS TSOULIS, PLAINTIFF-RESPONDENT -APPELLANT, v. ABBOTT BROS. II STEAK OUT, INC., DEFENDANT-APPELLANT -RESPONDENT.

CA 10-01721

Decided: March 25, 2011

PRESENT:  SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ. PETRALIA, WEBB & O'CONNELL, P.C., ROCHESTER (ARNOLD R. PETRALIA OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT. HALL AND KARZ, CANANDAIGUA (PETER ROLPH OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered April 8, 2010 in a breach of contract action.   The order denied the motion of defendant and cross motion of plaintiff for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of plaintiff's cross motion for summary judgment on the cause of action for specific performance of the option to purchase and directing the parties to obtain a third appraisal to establish the price of the real property, and as modified the order is affirmed with costs.

Memorandum:  Plaintiff commenced this action for, inter alia, specific performance of an option to purchase real property contained in the parties' lease agreement.   Defendant appeals and plaintiff cross appeals from an order denying defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross motion for summary judgment on the complaint.   Addressing first the cross appeal, we agree with plaintiff that Supreme Court erred in denying that part of the cross motion for summary judgment on the cause of action for specific performance of the option to purchase, and we therefore modify the order accordingly.

Patricia L. Morgan

Clerk of the Court