219 Broadway Corp. v. Alexander's, Inc.

61 A.D.2d 917, 402 N.Y.S.2d 840, 1978 N.Y. App. Div. LEXIS 10502

Opinion

Order of the Supreme Court, New York County, entered August 15, 1977, to the extent it denied appellant’s motion to dismiss the complaint, unanimously reversed, on the law, with costs and disbursements, the motion granted and the complaint dismissed. Appeal from that portion of the order awarding respondent priority in examination before trial is dismissed as moot, without costs or disbursements. The gravamen of the complaint is that appellant (landlord) refused to deliver to respondent (tenant) the 10-year lease for the parking lot allegedly executed by appellant. Absent delivery, the "lease” is ineffective (Geraci v Jenrette, 53 AD2d 538, affd on other grounds 41 NY2d 660, 666; Real Property Law, §§244, 246). The complaint does not allege breach by appellant of an executory contract to enter into a lease for the parking lot. Accordingly, we are not concerned with a question whether such an agreement was enforceable against appellant (see Geraci v Jenrette, 41 NY2d 660, 666, supra; see, also, Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 59 AD2d 732; see, also, General Obligations Law, § 5-703, subd 2). Concur— Lupiano, J. P., Birns, Silverman, Evans and Sullivan, JJ.