Opinion
May 23, 1994
Appeal from the Supreme Court, Queens County (Lane, J.).
Ordered that the order is affirmed, with costs.
The Supreme Court correctly treated the plaintiffs' motion and the defendant's cross motion as motions for summary judgment. In their respective motion papers and during the arguments at the hearings on the continuation of the temporary restraining order, all of the parties sought summary judgment and submitted proof which clearly indicated that they were "`deliberately charting a summary judgment course'" (Mihlovan v. Grozavu, 72 N.Y.2d 506, 508, quoting Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 320; Patten Corp. v. Association of Prop. Owners, 172 A.D.2d 996).
The option agreement is a valid and enforceable contract which satisfies the Statute of Frauds (see, General Obligations Law § 5-703; Kaplan v. Lippman, 75 N.Y.2d 320, 324). Moreover, it is sufficiently definite to be enforceable because it sets forth material terms (see, Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91; Kaplan v. Lippman, 75 N.Y.2d, supra, at 324; Marder's Nurseries v. Hopping, 171 A.D.2d 63, 68-75). While the option agreement does not contain any dates certain for the execution of the contract or for the closing of title, it does not provide that time is of the essence. Thus, the parties are given a reasonable time to tender performance (see, Grace v. Nappa, 46 N.Y.2d 560, 565; Lang v. Blumenthal, 203 A.D.2d 252; Lieberman Props. v. Braunstein, 134 A.D.2d 55, 59).
When the defendant tendered a proposed contract in February 1992, after the plaintiffs purportedly exercised the option, both parties waived the condition contained in the option agreement that a contract of sale, a mortgage, and a note be prepared within 60 days of the date notice was given to the parking lot tenant (apparently sometime in 1986) (see, Atkin's Waste Materials v. May, 34 N.Y.2d 422, 426-427; Northeast Leasing v Jon-Rac Assocs., 141 A.D.2d 620).
The Supreme Court properly determined that the defendant failed to give proper notice of the plaintiffs' alleged defaults in complying with the notice provision of the option agreement. The defendant, therefore, cannot use the plaintiffs' alleged defaults to vitiate the plaintiffs' right to exercise the option (see, D.A.D. Rest. v. Anthony Operating Corp., 139 A.D.2d 485, 486; see also, Curry Rd. v. Rotterdam Realties, 195 A.D.2d 780, quoting Cinema Dev. Corp. v. Two Thirty Eight Realty Corp., 149 A.D.2d 648, 649). We note that many of the alleged defaults were de minimis and that the defendant failed to demonstrate any prejudice which would stem from the enforcement of the option. Moreover, the plaintiffs presented evidence of large expenditures on the property in anticipation of their exercise of the option (see, Hirsch v. Lindor Realty Corp., 63 N.Y.2d 878, 881; Restoration Realty Corp. v. Robero, 58 N.Y.2d 1089, 1091; Weissman v. Adler, 187 A.D.2d 647).
We have considered the defendant's remaining contention and find it to be without merit (see, e.g., Restoration Realty Corp. v. Robero, 58 N.Y.2d, supra, at 1090; Tayeh v. Frederick, 180 A.D.2d 728, 729). Mangano, P.J., Thompson, O'Brien and Florio, JJ., concur.