BARLIA v. MURCOTT REALTY CORP

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

Jason BARLIA, appellant, v. MURCOTT REALTY CORP., respondent.

Decided: June 26, 2007

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOSEPH COVELLO, and THOMAS A. DICKERSON, JJ. Anthony M. Dattoma, Maspeth, N.Y., for appellant. Edward I. Sussman, New York, N.Y., for respondent.

In an action, inter alia, for specific performance of an option agreement for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Queens County (Dorsa, J.), entered August 24, 2006, which, among other things, denied his motion, in effect, for summary judgment on the complaint and granted the defendant's cross motion, inter alia, for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On its cross motion, inter alia, for summary judgment dismissing the complaint, the defendant made a prima facie showing of its entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The defendant established that the granting of an easement was an essential term of the alleged agreement.   Since the parties never agreed to the nature and extent of the easement, the alleged agreement was unenforceable (see Joseph Martin, Jr. Delicatessen v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541;  Red Hook Marble, Inc. v. Herskowitz & Rosenberg, 15 A.D.3d 560, 561, 789 N.Y.S.2d 737;  Danton Constr. Corp. v. Bonner, 173 A.D.2d 759, 759-760, 571 N.Y.S.2d 299).   Since, in response, the plaintiff failed to raise a triable issue of fact, the court correctly granted the defendant's cross motion (see Alvarez v. Prospect Hosp., supra at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The plaintiff's remaining contention is without merit.

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