SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

183 

CA 10-01721 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ. 

 

ALEXANDROS TSOULIS, 

PLAINTIFF-RESPONDENT-APPELLANT, 

V MEMORANDUM AND ORDER

ABBOTT BROS. II STEAK OUT, INC., 

DEFENDANT-APPELLANT-RESPONDENT. 

 

PETRALIA, WEBB & O’CONNELL, P.C., ROCHESTER (ARNOLD R. PETRALIA OF

COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT. 

HALL AND KARZ, CANANDAIGUA (PETER ROLPH OF COUNSEL), FOR

PLAINTIFF-RESPONDENT-APPELLANT. 

 

Appeal and cross appeal from an order of the Supreme Court,

Ontario County (Frederick G. Reed, A.J.), entered April 8, 2010 in a

breach of contract action. The order denied the motion of defendant

and cross motion of plaintiff for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting that part of plaintiff’s

cross motion for summary judgment on the cause of action for specific

performance of the option to purchase and directing the parties to

obtain a third appraisal to establish the price of the real property,

and as modified the order is affirmed with costs. 

Memorandum: Plaintiff commenced this action for, inter alia,

specific performance of an option to purchase real property contained

in the parties’ lease agreement. Defendant appeals and plaintiff

cross appeals from an order denying defendant’s motion for summary

judgment dismissing the complaint and denying plaintiff’s cross motion

for summary judgment on the complaint. Addressing first the cross

appeal, we agree with plaintiff that Supreme Court erred in denying

that part of the cross motion for summary judgment on the cause of

action for specific performance of the option to purchase, and we

therefore modify the order accordingly. 

Pursuant to the option to purchase, plaintiff was required to pay

rent, perform all other covenants in the lease agreement and notify

defendant, in writing and during the term of the lease agreement, of

his intention to exercise the option at least 60 days prior to the

purchase. “[I]t is well settled that in order to validly exercise an

option to purchase real property, one must strictly adhere to the

terms and conditions of the option agreement” (Weissman v Adler, 187
-2- 183 

CA 10-01721 

AD2d 647, 648; see Galapo v Feinberg, 266 AD2d 150). Here, the record

establishes that plaintiff complied with the conditions precedent and

thus validly exercised the option to purchase (see Kaygreen Realty

Co., LLC v IG Second Generation Partners, LP, 78 AD3d 1010, 1014; cf.

Galapo, 266 AD2d 150; see generally 2 Dolan, Rasch’s Landlord and

Tenant—Summary Proceedings § 20:21, at 131 [4th ed]). We further

conclude that plaintiff substantially and properly performed the terms

and conditions of the option to purchase and that he is therefore

entitled to specific performance (see generally Arcy Paint Co. v

Resnick, 134 AD2d 392). We reject plaintiff’s contention, however,

that he is entitled to a credit for rent paid. Here, the lease

agreement specifically provided that “[m]onthly rent shall continue to

be paid by [plaintiff] after exercising [the] option [to purchase] and

until closing [of the sale]” (see Bostwick v Frankfield, 74 NY 207,

212-213; Barbarita v Shilling, 111 AD2d 200, 201-202).

Contrary to defendant’s contention on his appeal, the court

properly denied his motion. Defendant’s contention that plaintiff

breached the option to purchase by failing to produce a formal

contract within 60 days of notifying defendant of his intention to

exercise the option to purchase is without merit. Furthermore,

plaintiff was unable to execute such a contract based on defendant’s

improper conduct, including its withholding of two appraisal reports

from plaintiff. Defendant further contends that the option to

purchase constituted an unenforceable agreement to agree because the

parties required the execution of a formal contract. We reject that

contention inasmuch as the parties’ lease agreement embodied all of

the essential elements of the option to purchase (see Sabetfard v

Djavaheri Realty Corp., 18 AD3d 640, 641). Contrary to defendant’s

contention, plaintiff’s failure to obtain a third appraisal of the

property in question is not fatal to the option to purchase. Indeed,

the record establishes that defendant withheld its two appraisals from

plaintiff, and thus defendant is at fault for the failure to obtain

the third appraisal. We therefore further modify the order by

directing the parties to obtain the third appraisal to establish the

price of the property in question (see generally Arcy Paint Co., 134

AD2d 392). We have reviewed defendant’s remaining contentions and

conclude that they are without merit.

Entered: March 25, 2011 Patricia L. Morgan

Clerk of the Court