Bensonhurst Real Estate, Ltd. v. Helsam Realty Co.

1 A.D.3d 302, 766 N.Y.S.2d 857, 2003 N.Y. App. Div. LEXIS 11464

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2003
• Status: Published

Opinion

In an action, inter alia, to compel specific performance of an option to purchase certain real property, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated June 18, 2002, which granted the plaintiffs motion for summary judgment and denied its cross motion, inter alia, for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Here, the plaintiff demonstrated its entitlement to exercise the option to purchase the subject building under the sublease. The reinstatement of the plaintiffs corporate status nunc pro tunc retroactively validated the option (see St. James Constr. Corp. v Long, 253 AD2d 754, 755-756 [1998]; Lorisa Capital Corp. v Gallo, 119 AD2d 99, 111-113 [1986]). Therefore, the plaintiff made out a prima facie case for summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York , supra). In opposition, the defendant failed to demonstrate the existence of a triable issue of fact.

The defendant’s remaining contentions are without merit. Smith, J.E, Crane, Mastro and Rivera, JJ., concur.