Opinion
2013-05182
12-03-2014
Shabsi PFEIFER, appellant, v. Elias A. GROISMAN, respondent, et al., defendant.
Solomon Rosengarten, Brooklyn, N.Y., for appellant. Lazar Grunsfeld Elnadav LLP, Brooklyn, N.Y. (Gerald Grunsfeld of counsel), for respondent.
Solomon Rosengarten, Brooklyn, N.Y., for appellant.
Lazar Grunsfeld Elnadav LLP, Brooklyn, N.Y. (Gerald Grunsfeld of counsel), for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Opinion In an action, inter alia, for specific performance of a contract for the sale of real properties, the plaintiff appeals from an order of the Supreme Court, Queens County (Strauss, J.), entered April 19, 2013, which granted the motion of the defendant Elias A. Groisman pursuant to CPLR 3211(a) to dismiss the complaint and to cancel the notices of pendency filed against the subject properties.
ORDERED that the order is affirmed, with costs.
In April 2011, the parties entered into a contract whereby the defendant Elias A. Groisman agreed to sell to the plaintiff three real properties, subject to the plaintiff satisfying two liens on those properties. In December 2012, the plaintiff commenced this action against Groisman and Maya Development, LLC, seeking, inter alia, specific performance of the contract. Thereafter, the plaintiff stipulated to discontinue the action insofar as asserted against Maya Development, LLC, with prejudice. Groisman thereafter moved, pursuant to CPLR 3211(a), to dismiss the complaint and to cancel the notices of pendency filed against the subject properties, and the Supreme Court granted the motion. We affirm, but on a ground other than that relied upon by the Supreme Court.
The Supreme Court erroneously found that no contract existed. “ ‘An option contract is an agreement to hold an offer open; it confers upon the optionee, for consideration paid, the right to purchase at a later date’ ” (Broadwall Am., Inc. v. Bram Will–El LLC, 32 A.D.3d 748, 751, 821 N.Y.S.2d 190, quoting Leonard v. Ickovic, 79 A.D.2d 603, 433 N.Y.S.2d 499, affd. 55 N.Y.2d 727, 447 N.Y.S.2d 153, 431 N.E.2d 638 ). Here, the plaintiff and Groisman entered into an option contract, whereby Groisman's obligation to sell the properties and the plaintiff's obligation to buy the properties would arise if the plaintiff satisfied the liens on the properties (see Kaplan v. Lippman, 75 N.Y.2d 320, 325, 552 N.Y.S.2d 903, 552 N.E.2d 151 ; Parker v. Booker, 33 A.D.3d 602, 603, 822 N.Y.S.2d 156 ; Broadwall Am., Inc. v. Bram Will–El LLC, 32 A.D.3d at 751, 821 N.Y.S.2d 190 ). However, the option contract never “ripen [ed] into an enforceable bilateral contract” (Broadwall Am., Inc. v. Bram Will–El LLC, 32 A.D.3d at 751, 821 N.Y.S.2d 190 ), as the plaintiff did not satisfy the liens on the properties (see Kaplan v. Lippman, 75 N.Y.2d at 324–325, 552 N.Y.S.2d 903, 552 N.E.2d 151 ; East End Cement & Stone, Inc. v. Carnevale, 73 A.D.3d 974, 976, 903 N.Y.S.2d 420 ; Manzi Homes, Inc. v. Mooney, 29 A.D.3d 748, 749, 816 N.Y.S.2d 130 ). Therefore, the plaintiff failed to state a cause of action for specific performance of the contract (see Richmond v. Miele, 30 A.D.3d 575, 576, 817 N.Y.S.2d 157 ; Manzi Homes, Inc. v. Mooney, 29 A.D.3d at 749, 816 N.Y.S.2d 130 ).
Accordingly, the Supreme Court properly granted Groisman's motion pursuant to CPLR 3211(a) to dismiss the complaint and to cancel the notices of pendency filed against the subject properties.
COHEN, J.P., HINDS–RADIX, DUFFY and LaSALLE, JJ., concur.