Duane Sales, Inc. v. Carmel

OPINION OF THE COURT

Memorandum.

The judgment appealed from and order of the Appellate Division brought up for review should be reversed, with costs, and the order and judgment of Supreme Court, Albany County, granting defendants’ cross motions to dismiss the complaint and supplemental summons and complaint reinstated.

The option provision in the lease between plaintiff and C. Louden Realty Co., landlord, gave plaintiff the right to "purchase the property at the same terms and conditions as offered by any bona fide purchaser”. Through a broker, landlord negotiated a contract for the sale of the property to defendants Hayes, Brickman and Wasserman. Plaintiff chose to exercise its option, but excluded the term of the proposed contract by which the parties agreed that the broker had negotiated the sale and the purchaser agreed to pay the brokerage commission and indemnify the seller against liability and expenses arising from a claim for a brokerage commission.

Contrary to plaintiffs contention, it simply did not accept "at the same terms and conditions as offered” as required in the lease. Nothing in the option provision permits the optionee to accept only those terms and conditions of an offer it deems material and beneficial to the landlord (cf. Camden Co. v Princess Props. Int., 38 NY2d 961). Nor can it be said that an agreement to pay a commission for negotiating the sale and to indemnify against a broker’s claim, as to liability and expenses, would be immaterial to the landlord upon the exercise of an option. The seller properly could treat plaintiff’s purported acceptance as a rejection of the proposed terms and conditions. In light of this disposition, it is unnecessary to pass upon the remaining issues raised by defendants.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.