McDonald's Corporation, Appellant, v. State Diner, Inc., et al., Respondents

McDonald’s Corporation, Appellant, v State Diner, Inc., et al., Respondents. [642 NYS2d 699] [MAJORITY] In an action for specific performance of an option to purchase real property, the plaintiff appeals from an order of the Supreme Court, Queens County (Posner, J.), dated March 24, 1995, which denied its motion for summary judgment in its favor. Ordered that the order is affirmed, with costs. The lease between the plaintiff lessee and the defendant lessor gave the plaintiff the right to purchase the demised premises for a set price at any time during the term of the lease by giving the lessor 120 days written notice of its intent to do so. Although it is undisputed that the plaintiff informed the lessor of its intent to exercise its right to purchase the property in a letter dated August 4, 1994, the evidence submitted by the defendants was sufficient to raise a triable issue of fact as to the term of the lease, and whether the plaintiff exercised its option prior to the expiration of the lease. The Supreme Court therefore properly denied the plaintiff’s motion for summary judgment (see, CPLR 3212 [b]; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341; Gaither v Saga Corp., 203 AD2d 239, 240). Rosenblatt, J. P., Sullivan, Copertino and Gold-stein, JJ., concur.