Though once considered somewhat distinct, see Benedict v. Pincus, 84 N.E. 284 (N.Y. 1908), it is now established in New York that an option is a binding contract. Clarke v. Caldwell, 132 A.D.2d 171, 173 (N.Y.App.Div. 1987); Shubert Foundation, Inc. v. 1700 Broadway Co., 173 A.D.2d 126, 129 (N.Y.App.Div. 1992) (option defined as "`a contract to keep an offer open'") (quoting 1 Williston on Contracts, 3d Ed., sec. 61A, p 198.). As such, options are subject to the customary rules of contract interpretation.
Decided February 11, 1993 Appeal from (Sup Ct, N Y County, Oct. 30, 1992 [ 173 A.D.2d 126]) MOTIONS FOR LEAVE TO APPEAL GRANTED OR DENIED
Decided June 9, 1992 Appeal from (1st Dept: 173 A.D.2d 126) FINALITY OF JUDGMENTS AND ORDERS
Neither the incorrect identification of the lease term nor the use of CFM Enterprises' stationery renders the notice ineffective. The response by petitioner showed neither that it was confused by respondent's notice nor that it viewed the notice as failing to comply with the lease's requirements for the exercise of the renewal option (see, Shubert Found. v 1700 Broadway Co., 173 A.D.2d 126, 131, lv denied 81 N.Y.2d 704). Finally, we reject petitioner's contention that respondent is not entitled to exercise that option because it has breached other provisions of the lease (see, Berry v Stuyvesant, 245 App. Div. 516, 519). Thus, we grant judgment in favor of respondent and decree that respondent is entitled to possession of the premises described in the petition.
The counterclaim for reformation of the indemnification provision that was held to be viable, was also properly found not to be so inseparable from plaintiff's action on the note as to justify the withholding of summary judgment on the note (see, Pease Elliman v 926 Park Ave. Corp., 23 A.D.2d 361, affd 17 N.Y.2d 890; Maglich v Saxe, Bacon, Bolan, 97 A.D.2d 19, 23-24). Finally, although plaintiff did not formally move for summary judgment, the IAS Court did not err in granting such relief upon a search of the record, and indeed such may be done even on appeal (Shubert Found. v 1700 Broadway Co., 173 A.D.2d 126, 131, lv dismissed 80 N.Y.2d 826). We have considered defendant-appellant's other contentions and find them to be without merit.
Acceptance of plaintiff's theory would require acquiescence in its total failure for nearly a year to question the difference between schedule 3 and the certificate of occupancy. Under these circumstances, even were this court to conclude that the sales contract's disclaimer was too general to be given effect, it is highly implausible to believe that an experienced real estate operation such as that of plaintiff, represented by legal counsel, would not examine the documents involved in the transaction and comprehend their significance (see, Nestler vWhiteside, 162 A.D.2d 845). Therefore, not only is plaintiff not entitled to summary judgment, but a search of the record indicates that, on the contrary, it is defendant that should be accorded such relief although not specifically requested (see, Shubert Found. v. 1700 Broadway Co., 173 A.D.2d 126; Tele-Pac, Inc. v. Grainger, 168 A.D.2d 11, lv dismissed 79 N.Y.2d 822). Concur — Milonas, J.P., Rosenberger, Ellerin and Asch, JJ.