Restoration Realty Corp. v. Robero

Lupiano, J.

(dissenting). I join in Justice Silverman’s conclusion that the judgment should be modified to the extent of affirming the declaratory judgment portion thereof and remanding the summary dispossess proceeding to the trial court. However, my affirmance of the declaratory judgment portion of the judgment appealed from is based upon the conclusion that the lease agreement relevant to the option to purchase is unambiguous. The subject lease recites that it is “made as of this 8th day of August 1978” and provides that the lease term shall “commence on the 15th day of August” 1978 and “end on the 15th day of August” 1983. Paragraph 39 thereof provides that the tenant “shall have the Right For One (1) Year from date hereof to Purchase these premises” (emphasis supplied). It is undisputed that the tenant endeavored to exercise the option to purchase on August 14, 1979. The date of the lease is August 8, 1978. The option was to be exercised within one year of this date. Nowhere in the lease is it provided that the option may be exercised within one year of the commencement of the lease term. No ambiguity exists. Accordingly, the tenant did not timely exercise her right to purchase the property pursuant to the option contained in the lease. “It is the general rule that in a contract of option time is of the essence” (10 NY Jur, Contracts, § 273, p 211; see Kotcher v Edelblute, 223 App Div 451, revd on other grounds 250 NY 178; Noble v Higgins, 214 App Div 135, affd 243 NY 538; Time specified in real-estate contract for giving notice of exercise of option to purchase as of essence, Ann., 72 ALR2d 1127).