Edith Salm, Appellant, v. Edward A. Sammito, Respondent, et al., Defendants

Edith Salm, Appellant, v Edward A. Sammito, Respondent, et al., Defendants. [MAJORITY] In an action to recover damages for breach of contract, plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Jordan, J.), entered August 20, 1984, as denied her motion for summary judgment against defendant Sammito. Order modified, on the law, by adding thereto that, upon searching the record, summary judgment is granted to defendant Sammito. As so modified, order affirmed, with costs to defendant Sammito. Since plaintiff’s contract with defendant Sammito was subject to a lease containing a right of first refusal at the same price and on the same terms, the tenant’s exercise of that right by execution of an identical contract made plaintiff’s contract void and unenforceable. The fact that the terms of the sale changed somewhat at closing does not reinstate plaintiff’s contract (see, Bullock v Cutting, 155 App Div 825). Furthermore, since plaintiff was neither a party to nor an intended beneficiary of the lease, she may not use it to enforce her contract right (see, Flemington Natl. Bank & Trust Co. v Domler Leasing Corp., 65 AD2d 29, affd 48 NY2d 678). Thompson, J. P., Weinstein, Neihoff and Lawrence, JJ., concur.