It is ORDERED that Plaintiff's motion is disposed of as follows:

The underlying action concerns a failed contract for the sale of a pizzeria and restaurant. In the undated Addendum to Contract the parties agreed to certain changes in the July 20, 2007 agreement itself. Included among the changes is a provision that the contract was "...subject to Purchaser entering into a new lease for the premises with the Landlord,..."

Plaintiff-purchaser contends that it did not enter into a new lease with the landlord and, therefore, it had an absolute right to cancel the contract and obtain a refund of the $25,000 contract down payment it made.

Defendant-seller contends, among other things, that the landlord did, in fact, offer a new lease to Plaintiff "...on better terms..." than the existing lease it had with the landlord and, in not accepting the offered lease, Plaintiff acted in bad faith and breached their contract.

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought. CPLR 3212; Zuckerman v. City of New York, 49 NY2d 557, 1980. However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "...the [*2]burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action". Garnham & Han Real Estate Brokers v. Oppenheimer, 148 AD2d 493, 1989; Zuckerman, supra at 562. Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion. Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 1988.

In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance. Smith v General Acc. Ins. Co., 91 NY2d 648, 1998; Dalton v Educational Testing Service, 87 NY2d 384,1995. The covenant of good faith and fair dealing embraces a pledge that "...neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract". Dalton, supra at 389, quoting Kirke La Shelle Co. v Armstrong Co., 263 NY 79,1933.

In offering the undated Addendum to Contract with it's unequivocal and unambiguous statement that the contract was "...subject to Purchaser entering into a new lease for the premises with the Landlord,..." along with proof that it signed no new lease with the landlord, Plaintiff established it's prima facie entitlement to summary judgment.

In opposition to Plaintiff's motion, Defendant submitted a copy of the lease that was offered by the landlord to Plaintiff. The lease includes terms that appear to be more favorable to Plaintiff than the terms of Defendant's own lease with the landlord. In offering such proof, the Court finds that Defendant has sufficiently raised issues of fact as to whether Plaintiff acted in good faith and fair dealing.

The existence of issues of fact as to whether the Plaintiff made good faith efforts to sign a new lease with the landlord before determining to invoke its right to cancel the contract warrants the denial of Plaintiff's motion. Accordingly, Plaintiff's motion is DENIED.

Dated: New City, New York

March 18, 2008

Enter :

____________________________

Hon. Alfred J. Weiner

Justice of the Supreme Court

To:

Daniel E. Bertolino, P.C.

Attorney for Plaintiff

Ryan & Schwarz, LLP

Attorneys for Defendants