Silverman Perlstein & Acampora, LLP v. Reckson Operating Partnership, L.P.

303 A.D.2d 576, 756 N.Y.S.2d 762

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 2003
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of a lease, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (O’Connell, J.), dated December 21, 2001, as denied their motion for summary judgment on the issue of liability on their first cause of action alleging breach of a lease and granted that branch of defendants’ cross motion which was for summary judgment dismissing that cause of action. Justice Friedmann has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).

Ordered that the order is affirmed insofar as appealed from, with costs.

In opposition to the defendants’ prima facie demonstration of entitlement to judgment as a matter of law dismissing the plaintiffs’ cause of action alleging breach of a lease, the plaintiffs failed to raise a triable issue of fact that they either terminated the lease or materially changed their position in reliance on the defendants’ anticipatory repudiation of the same before the repudiation was retracted (see De Forest Radio Tel. & Tel. Co. v Triangle Radio Supply Co., 243 NY 283, 292 [1926]; Restatement [Second] of Contracts § 256 [1]; Harley v Miller, 295 AD2d 401 [2002]; Mattes v C.R. Bard, Inc., 295 . AD2d 324 [2002]; GCDM Ironworks v GJF Constr. Corp., 292 AD2d 495 [2002]). Thus, the Supreme Court properly denied the plaintiffs’ motion and granted that branch of the defendants’ cross motion which was for summary judgment dismissing the plaintiffs’ first cause of action alleging breach of the lease. Ritter, J.P., Feuerstein, Friedmann and Luciano, JJ., concur.