Opinion
February 6, 1978
In a proceeding to compel the executrix of an estate to convey certain real property owned by the deceased to petitioner upon his payment of a stated amount of money therefor, the petitioner appeals from an order of the Surrogate's Court, Putnam County, dated March 31, 1977, which granted respondents' motion for summary judgment, and denied his cross motion for summary judgment. Order modified, on the law, by deleting therefrom the provision granting respondents' motion for summary judgment and substituting therefor a provision that the said motion is denied. As so modified, order affirmed, with $50 costs and disbursements payable by respondent Duke to appellant, and proceeding remanded to the Surrogate's Court for further proceedings consistent herewith. The agreement granting the petitioner an option to purchase the leased premises, as subsequently amended by a lease, is not, on its face, invalid as an unreasonable restraint on alienation (see 33 N.Y. Jur, Landlord and Tenant, § 196 et seq.). However, many questions of fact remain for resolution before it can be said that petitioner-appellant is entitled to enforce the provision. It is unclear whether a condition for the exercise of the option required the deaths of the owners in a common disaster or at about the same time. The question of who must actually exercise the option must also be resolved. Although the option is clearly for the benefit of petitioner, it is conditioned on the operation of a hardware business which has been operated in corporate form. These and other questions of fact must be determined by the Surrogate. Martuscello, J.P., Rabin, Cohalan and Hawkins, JJ., concur.