Opinion
April 9, 1990
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the appeal from the order entered May 4, 1988, is dismissed; and it is further,
Ordered that the appeal from the order dated August 1, 1988, is dismissed: and it is further,
Ordered that the interlocutory judgment, as amended, is modified, on the law, by adding thereto a provision declaring that the plaintiff does not have a right of first refusal to purchase the leased premises; as so modified, the interlocutory judgment, as amended, is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
The appeal from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of the interlocutory judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the orders are brought up for review and have been considered on the appeal from the interlocutory judgment (CPLR 5501 [a] [1]).
The plaintiff contends that the defendant, in drafting the subject lease, inserted paragraph 52 providing the tenant with a right of first refusal, which, when read together with paragraph 68 providing the tenant with a right to assign the lease, amounted to a right to separately assign the right of first refusal independent of assigning the remainder of the lease. We disagree.
In Gilbert v. Van Kleeck ( 284 App. Div. 611), the Appellate Division, Third Department, determined that whether a clause in a lease providing for an option to purchase permits the tenant to assign solely the option depends on the intention of the parties at the time of execution. Here the defendant has submitted affidavits of both parties to the original lease, Richard A. Surowiec and Ronald Castiglione, stating that they had not intended to provide for severability and separate assignment of the right of first refusal. In opposition, the plaintiff has proffered only an unsworn affidavit of Robert Alberti, wherein he stated that Castiglione offered to him the right of first refusal on his lease. That does not constitute evidentiary proof in admissible form sufficient to defeat a motion for summary judgment (see, Slavenburg Corp. v. Opus Apparel, 53 N.Y.2d 799, 801). As such, the defendant's motion for summary judgment was properly granted (see, Frank Corp. v Federal Ins. Co., 70 N.Y.2d 966, 967; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Daliendo v. Johnson, 147 A.D.2d 312, 317).
We note that since this a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the defendant rather than dismissal of the complaint (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 24, cert denied 371 U.S. 901). Mangano, P.J., Thompson, Bracken and Balletta, JJ., concur.