Postler v Piedilato

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Postler v Piedilato 2018 NY Slip Op 33469(U) December 26, 2018 Supreme Court, Richmond County Docket Number: 150243/2017 Judge: Jr., Orlando Marrazzo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] RICHMOND COUNTY CLERK 12/28/2018 02:17 PM NYSCEF DOC. NO. 97 INDEX NO. 150243/2017 RECEIVED NYSCEF: 12/28/2018 OF NEW YORK SUPREME COURT OF THE STATE rlffi posrt nn *o gRrcrD KELLY' DECISION/ORDER DCM PART 21 HON. ORLANDO MARRAZZO' JR. Plaintffis), Index No': 15024312017 Motion No. -against' 3 JANET R. PIEDILATO. Defendant(s) The fo'owing numbered 1 December 2018 to 1 were fu'y submitted on 20th day of PaPers Numbered judgment, with supporting Papers and Exhibits' Defendant,s motion for summary """"""""""' ""--"""" dated, July 23,2018 1 judgment to CPLR 3212 seeking summary Defendant moves for an order pursuant and the below, defendant's motion is granted' to dismiss the comPlaint' As is set forth complaint is dismissed' the Tax MaP designated Block 285' Lot 10 on property real the of owner Defendant, commonly known as 600 Forest Avenue, of the City of New York, Richmond County' Property")' Staten lsland, New York ("Subject plaintiffs' leased the subject property to on or about February l,2007 defendant llPage 1 of 5 [*FILED: 2] RICHMOND COUNTY CLERK 12/28/2018 02:17 PM NYSCEF DOC. NO. 97 INDEX NO. 150243/2017 RECEIVED NYSCEF: 12/28/2018 obligated to remit monthly According to the terms of the 2007 lease plaintiffs were 1, 2012' rent payments to defendant commencing september In20l2 the parties renewed 5 (five) years' the 2007 Lease pursuant to its terms for an additional in the Rider to the Lease The controversy in this action is the "right of first refusal," ("Rider"). According to the Rider, ,.The landlord hereby agrees that, in the event of a sale of the premises herein, right of first refusal known as 600 Forest Avenue, the tenant shall have the to purchase the premises before it is placed on the open market'" Defendant retained a broker. on or about october 6, 2016, the broker that the subject property defendant,s behalf personally informed defendant for sale and presented defend about November g, ant an will on be put up offer to purchase the property for $975'000' on or 2016 defendant sent a letter to plaintiffs reiterating her offer to property for $975'000'00' plaintiffs. Plaintiffs declined defendant's offer to purchase the This deal fell through however. In market, but defendant 2017, defendant placed the subject premises on the property as they were lower than the received no acceptable offers to purchase the subject thereafter taken off the price defendant desired to sell the property, and it was shortly market. on August 31,2017 In accordance with the express terms, the 2012 Lease expired ' plaintiffs declined to exercise an option upon written notice to defendant, to extend the offer from a third party to purchase same. In May 201g, defendant received an unsolicited conveyed the offer to the subject property for $950,000. shortly thereafter, defendant decline' Plaintiffs plaintiffs to match the third-party offer. Plaintiffs' response was to 2lPage 2 of 5 [*FILED: 3] RICHMOND COUNTY CLERK 12/28/2018 02:17 PM NYSCEF DOC. NO. 97 INDEX NO. 150243/2017 RECEIVED NYSCEF: 12/28/2018 argues that they retained an appraiser who advised them that the subject property was worth $675,000 and that should be the purchase price. A motion for summary judgment serves the laudatory purpose of promoting effrcient case resolution, (Dunham v Hilco Construction Co., Inc., 89 [1996].) Ny2d 425, 42g o'Summary judgment is a highly useful device for expediting the just disposition of a legal dispute for all parties" and to conserve limited judicial resources (In re Suffolk Co, O/b/o Mivhael V.,83 AD2d 178, 132 [App Div,2nd,Dept, Igg4).) The purpose of summary judgment is to expedite the resolution of civil cases by resolving them as a matter of law where there is no dispute of fact between the parties to a litigated matter. The movant must make some prima facie showing of entitlement to summary judgment as a matter of law. It is well settled that amotion for summary judgment is a drastic remedy which will be granted only when there are no triable issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 11986); Andre v. Pomeroy,35 NY2d 361,362 U97al; cpLR $3212 Once the proponent seeking summary judgment has established a (b).1 prima facie showing of entitlement to summary judgment as required by CPLR $ 3212; the burden shifts to the party opposing the motion for summary judgment to lay bare its proofs and to produce evidentiary proof in proper admissible form in opposition to the motion that is sufficient to establish the existence of material issues of fact which require a trial (Zuckermanv City of New York,49 NY2d 557,562 tl980l; Davenportv. County ofNassau, 3lPage 3 of 5 [*FILED: 4] RICHMOND COUNTY CLERK 12/28/2018 02:17 PM NYSCEF DOC. NO. 97 279 AD2da97 INDEX NO. 150243/2017 RECEIVED NYSCEF: 12/28/2018 lAppDiv,2d Dept, 20011; Mavigliav. Inapart Properties Corp.,,I49 AD2d a82 lAppDiv,2d Dept, 1991].) In arriving at the decision whether to grant or to deny such a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving PartY, which requires it to give that party all the reasonable inferences which can be drawn from the evidence (Fundamental Portfulio Advisors, fnc., v Tocqueville Asset Mgt., Lp.,7 NY3d 96, 105 120061; McGill v. Bohack corp.,69 AD2d 853 [App Div 2nd Dept, 19791; Negri v. Stop & Shop, Inc., 65 NY2d 625 [1985].) In regards to the right of first refusal it is well settled that, A right of first refusal is "an agreement that should the owner receive a bona fide offer to purchase the property during the term of the option, he [or she] will not accept the offer without giving the [holder of the right of refusal] the right to buy it on the same terms" (Quigley v. capolongo,53 A.D.2d 7L4,7L5,383 N.Y.S.2d 935 lLg76l, offd a3 N.y.2d 74g,4oL N.y.s.2d 1009, 372 N.E.2d 797 [L977] [citations omitted]; see LIN Broadcasting Corp. v. Metromedio, Inc.,74 N.Y.2d 54,60,544 N.Y.s.2d 3L6,542 N.E.2d 629 [1989] ). when the owner has conveyed such a bona fide offer to the holder, the right of first refusal will be extinguished if the holder declines to purchase the property or fails to match the terms of the offer (see YudellTrust t v. APt Westchester Assoc.,227 A.D.2d 47L, 473,643 N.y.S.2d 161 [1996]; story v. wood, 166 A.D.2d L24, L29, s69 N.y.s.2d 4s7 lLggLl ). sighted by Clifton Land Co. LLC., v Magic Car wash, LLC. 165 AD3d L4ss,1a56 [App Div. 3'd Dept. 20181.) alnug" 4 of 5 [*FILED: 5] RICHMOND COUNTY CLERK 12/28/2018 02:17 PM NYSCEF DOC. NO. 97 INDEX NO. 150243/2017 RECEIVED NYSCEF: 12/28/2018 Here, plaintiffs waived their right of first refusal when they declined to meet the third-party offer presented to them in May of 2018. A lessee's right of first refusal is extinguished when, after being notified of the prospective sale of the property and given the exact terms and purchase price of the third-party offer, the lessee refuses to match the third-party offer. (F&f Management & Parking Corp. v Flushing plumbing Supply Co., Inc.,68 AD3d 920,923-92a lApp Div. 2nd Dept. 2009); LIN Broadcasting Corp.74 Ny2d at 60; Finlay,47 AD3d at 883).1 Here, defendant notified plaintiffs that she received an offer to purchase the subject property in May 2}IS,including the purchase price. plaintiffs subsequently rejected defendant's offer to match the third-party offer and thereby permitted defendant to entertain the sale of the subject premises to any other purchasers. Accordingly, defendant's motion is granted, and the complaint is dismissed. This constitutes the decision and order of the court. Dated: December 26, 2018 Staten Island, New York Jr' Hon. Orlando Manazzo, t;d"g SuPreme Couft Jtstice 5lPage 5 of 5