The court at Special Term granted plaintiff-respondent landlord's cross motion for summary judgment and held that the defendant-appellant tenant's exercise of its option to purchase the premises was ineffective and had expired for failure to comply with fire and liability insurance provisions in the lease and that, accordingly, because of the default, the tenant had lost its option to purchase.
We originally modified (supra), to hold that the technical breaches were nonmaterial and that, therefore, the option to purchase was effectively exercised, and granted summary judgment to the defendant-appellant tenant. We cited 1014 Fifth Ave. Realty Corp. v. Manhattan Realty Co. ( 111 A.D.2d 78, 80), to the effect that "equity will not allow a forfeiture because of `a trivial or technical breach.'" (Supra, p 457.)
In the interim, the Court of Appeals reversed our determination in 1014 Fifth Ave. ( 67 N.Y.2d 718) and denied the plaintiff's motion for summary judgment there on the ground that it could not be deduced from the affidavits alone that the deviations were de minimis, and thus leaving the parties to trial.
Accordingly, we grant reargument and withdraw our determination in this matter and modify to deny the cross motion for summary judgment.
Concur — Kupferman, J.P., Sandler, Asch and Rosenberger, JJ.