156 A.D.2d 260 | N.Y. App. Div. | 1989
Order, Supreme Court, New York County (Ethel B. Danzig, J.), entered on or about October 19, 1988, which denied plaintiff-appellant’s motion for summary judgment while granting defendant’s cross motion for summary judgment dismissing the complaint, without prejudice to plaintiff’s right to replead, is unanimously affirmed, without costs.
In the absence of a clear delineation of separable personal property, the option to purchase under a first right of refusal should match the total bid by the prospective purchaser. The holder of the option has not identified any personal property other than fixtures which could not be removed except at great expense to defendant. The option clause will not be construed in a manner which will force the property owner to sell its property at less than fair market value. For purposes of exercising the option here, the sale price is indivisible, and specific performance will not lie. Concur—Sullivan, J. P., Carro, Wallach, Smith and Rubin, JJ.