Opinion
March 23, 1987
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order is reversed, on the law, with costs, the motions are granted, the notice of pendency filed against the subject property is hereby discharged and canceled, summary judgment is granted to the defendant, and the complaint is dismissed.
Because the plaintiffs, in a prior action, had asserted that the contract between them and the defendant had been canceled, they are bound by their first choice, and may not now, in a separate action, claim that the contract was still valid and seek specific performance thereof (see, Whalen v. Stuart, 194 N.Y. 495, 505, rearg denied 195 N.Y. 524; Matter of Garver, 176 N.Y. 386, 394; Terry v. Munger, 121 N.Y. 161, 167). As the defendant's motion for summary judgment is granted, the notice of pendency filed in this action is hereby discharged and canceled of record (see, CPLR 6514 [a]). Bracken, J.P., Brown, Lawrence and Eiber, JJ., concur.