Opinion
December 31, 1975
In an action inter alia to compel defendant Daniels to specifically perform an option agreement contained in a lease, (1) plaintiffs appeal from so much of an order of the Supreme Court, Queens County, dated June 17, 1975, as granted the branch of said defendant's motion which was to dismiss the complaint; and (2) said defendant appeals from so much of the same order as denied the branch of her motion which was to dismiss the cross complaint of defendants Carella Holding Corp. and Frank Carella. Order affirmed insofar as appealed from, without costs. The complaint was properly dismissed. Even assuming that the letter of May 30, 1973 may be deemed to have revived plaintiffs' option of first refusal, such option agreement is violative of the Statute of Frauds (General Obligations Law, § 5-703) and plaintiffs have not shown such part performance as would allow the courts to exercise their equitable powers. The cross complaint was not subject to automatic dismissal upon the dismissal of the complaint as defendant Daniels has not yet satisfied the provision of her contract of sale to defendants Carella, that is, that the premises would be delivered vacant of the plaintiff tenants. Rabin, Acting P.J., Latham, Cohalan, Brennan and Munder, JJ., concur.