SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

214 

CA 12-00708 

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND MARTOCHE, JJ. 

 

ALEXANDROS TSOULIS, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

ABBOTT BROS. II STEAK OUT, INC., 

DEFENDANT-APPELLANT. 

 

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

COUNSEL), FOR DEFENDANT-APPELLANT. 

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

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Ontario County

(Frederick G. Reed, A.J.), entered February 15, 2012. The order,

among other things, denied the motion of defendant for summary

judgment dismissing the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action for, inter alia,

specific performance of an option to purchase real property contained

in the parties’ lease agreement. In a prior appeal, this Court

modified the order of Supreme Court by granting plaintiff’s cross

motion for specific performance of the option to purchase and

directing the parties to obtain a third appraisal to establish the

price of the subject real property, including the building located

thereon (property) (Tsoulis v Abbott Bros. II Steak Out, Inc., 82 AD3d

1612, 1612). Thereafter, defendant moved for summary judgment

dismissing the complaint, contending that plaintiff forfeited his

rights under the option to purchase by failing to pay rent for the

property after August 2011 and by allegedly damaging the property by,

inter alia, removing fixtures and equipment. Plaintiff cross-moved

for summary judgment on the complaint and for an order directing that

he is entitled to specific performance of the option to purchase and

to an appraisal of the property in compliance with this Court’s prior

order (id. at 1614). The court denied the motion and granted the

cross motion, and defendant appeals.

We note as background that, on August 22, 2011, defendant’s

attorney sent a letter to plaintiff’s attorney in which he asserted

that plaintiff never signed a lease renewal with respect to the

property and that, even if a lease renewal had been signed, the
-2- 214 

CA 12-00708 

renewal term would have expired on July 31, 2011 (August 2011 letter). 

Therefore, according to defendant, plaintiff was a “holdover” tenant

having a “month[-]to[-]month” tenancy. The record demonstrates that

plaintiff continued to occupy the property and to pay rent until

August 25, 2011.

Notwithstanding the August 2011 letter, defendant contends that

plaintiff breached the option to purchase and forfeited his rights

thereunder by failing to pay rent after August 2011. We reject that

contention. In our previous order, we determined that plaintiff had

validly exercised the option to purchase and that plaintiff was still

obligated to pay rent pursuant to the lease agreement, which did not

merge with the purchase contract for the property (id. at 1613; see

Bostwick v Frankfield, 74 NY 207, 212-213). Inasmuch as defendant

notified plaintiff that the lease agreement had expired and that

plaintiff’s tenancy continued on only a month-to-month basis,

plaintiff was not obligated to pay rent after August 25, 2011, i.e.,

the date he vacated the property, and thus plaintiff did not breach

the option to purchase by failing to make such payments.

We reject defendant’s further contention that the court erred in

denying its motion because plaintiff damaged the property by, inter

alia, removing fixtures and equipment. Initially, we note that

defendant has not asserted a counterclaim with respect to the alleged

damages to the property. In any event, plaintiff submitted competent

evidence disputing defendant’s damage claims and thus raised triable

issues of fact on the motion. Further, plaintiff submitted the expert

affidavit of an appraiser who opined that, notwithstanding defendant’s

damage claims, the real property and contents of the building could

still be valued and appraised as of 2004—a date preceding those claims

and accepted by defendant. 

We have reviewed defendant’s remaining contentions and conclude

that they are without merit.

Entered: April 26, 2013 Frances E. Cafarell

Clerk of the Court