Opinion
June 17, 1985
Appeal from the Supreme Court, Kings County (Jordan, J.).
Order modified, on the law, by adding thereto that, upon searching the record, summary judgment is granted to defendant Sammito. As so modified, order affirmed, with costs to defendant Sammito.
Since plaintiff's contract with defendant Sammito was subject to a lease containing a right of first refusal at the same price and on the same terms, the tenant's exercise of that right by execution of an identical contract made plaintiff's contract void and unenforceable. The fact that the terms of the sale changed somewhat at closing does not reinstate plaintiff's contract ( see, Bullock v. Cutting, 155 App. Div. 825).
Furthermore, since plaintiff was neither a party to nor an intended beneficiary of the lease, she may not use it to enforce her contract right ( see, Flemington Natl. Bank Trust Co. v Domler Leasing Corp., 65 A.D.2d 29, affd 48 N.Y.2d 678). Thompson, J.P., Weinstein, Neihoff and Lawrence, JJ., concur.