Power Test Petroleum Distributors, Inc. v. Baker-Tripi Realty Corp., BAKER-TRIPI

• Decision Date: 22 February 1993
• Docket Number: BAKER-TRIPI
• Citation: 594 N.Y.S.2d 266,190 A.D.2d 845
• Parties: POWER TEST PETROLEUM DISTRIBUTORS, INC., et al., Appellants, v.REALTY CORP., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 266

594 N.Y.S.2d 266

190 A.D.2d 845

POWER TEST PETROLEUM DISTRIBUTORS, INC., et al., Appellants, v. BAKER-TRIPI REALTY CORP., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Feb. 22, 1993.

Del Gadio & Schultz, Garden City (Robert G. Del Gadio, of counsel), for appellants.

Albert E. Silbowitz, Cedarhurst, for respondents.

Before BRACKEN, J.P., and BALLETTA, RITTER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In an action to enforce a right of first refusal to purchase a parcel of land pursuant to a written lease between the plaintiff Leemilt's Petroleum, Inc., and the defendant Baker-Tripi Realty Corp., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Kassoff, J.), dated October 31, 1990, which, after a nonjury trial, held that the sale of stock of the defendant Baker-Tripi Realty Corp. to the defendant Brendan Donnelly did not trigger the right of first refusal clause enabling the plaintiffs to purchase the subject property.

ORDERED that the judgment is affirmed, with costs.

In May 1962 the plaintiff Leemilt's Petroleum, Inc. (hereinafter Leemilt) and the defendant Baker-Tripi Realty Corp. (hereinafter Baker-Tripi) entered into a 20-year lease for the subject parcel of property, which was Baker-Tripi's sole asset. The term of the lease commenced on December 12, 1963, when Baker-Tripi obtained a certificate of occupancy for the property. It provided Leemilt with the right of first refusal in the event Baker-Tripi wished to accept a bona fide offer for the sale of the property. In January 1973 the plaintiff Power Test Petroleum Products (hereinafter Power Test), which along with Leemilt is owned by Getty Petroleum Corporation, sublet the property from Leemilt, and thereafter, in November 1976 entered into a licensing agreement with and subleased the property to the defendant Brendan Donnelly. Thereafter, he operated a Power Test service station from the property.

Several times in 1983, George Baker, one of the two principals of Baker-Tripi, asked George DeForest, the vice-president of real estate for Leemilt and Power Test, whether Leemilt wanted to purchase the property. Baker (apparently acting on behalf of Andrew Tripi, the other principal, as well) was unhappy with the offers he received in response to his inquiries and refused to sell the property. Thereafter, in a letter dated November 15, 1983, Baker-Tripi informed Power Test that the lease would expire on December 12, 1983, and that its tenancy would be month-to-month at Baker-Tripi's will if it remained in possession of the property. Several days after the lease expired, George Baker and Andrew Tripi entered into a contract with Brendan Donnelly whereby Donnelly agreed to purchase from them all of the shares of Baker-Tripi.

This action ensued, in which Leemilt and Power Test seek, inter alia, a judgment declaring that the sale of Baker-Tripi stock to Donnelly was actually a sale of the property, thereby triggering the right of first refusal under the lease. Although the Supreme Court, Queens County, inter alia, granted Baker-Tripi's motion for summary judgment, finding that its lease with Leemilt expired prior to the original sale of stock to Donnelly (see, Power Test Petroleum...