Harwin & Stern, P. C. v. Barash

Appeal from an order entered July 21, 1982 in Supreme Court, New York County (Myriam Altman, J.), which denied plaintiff’s motion for summary judgment, dismissed as subsumed within the appeal from the order of April 14, 1983, without costs. Order entered April 14, 1983 in the same court is unanimously modified on the law to the extent of granting summary judgment to plaintiff and the order is otherwise affirmed, with costs. Plaintiff sues for enforcement of its right to purchase 470 capital stock shares of the co-operative apartment in which its office is located, pursuant to the terms of an option in its five-year lease with defendant. Defendant originally accepted a $6,000 down payment and advised plaintiff that he was electing to receive full payment in cash, as specified in the option. Some months later, however, defendant repudiated plaintiff’s right to the option, alleging a breach of the lease. This action followed. Defendant now claims that there was never a validly executed lease, despite the plaintiff’s production in court of the signed 718 document. Defendant does not deny his signature, or even delivery, but only asserts that the lease he delivered was a photostatic copy, and somehow not the original produced by plaintiff. Given the above, plus defendant’s utilization of paragraph 55 to demand an all cash payment on the option, there is neither a question of credibility nor plaintiff’s right to performance under the lease. (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [“ ‘A shadowy semblance of an issue is not enough to defeat the motion’ ”, quoting Hanrog Distr. Corp. v Hanioti, 10 Misc 2d 659, 660].) Concur — Murphy, P. J., Kupferman, Sullivan, Ross and Carro, JJ.