Yudell Trust I v. API Westchester Associates
| Decision Date | 13 May 1996 |
| Citation | 227 A.D.2d 471,643 N.Y.S.2d 161 |
| Parties | YUDELL TRUST I, et al., Appellants, v. API WESTCHESTER ASSOCIATES, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Schwarzfeld, Ganfer & Shore, New York City (Steven J. Shore, of counsel), for appellants.
Schnader, Harrison, Segal & Lewis, New York City (M. Christine Carty and Nancy D. Zehner, of counsel), for respondents API Westchester Associates, Limefield Corporation, N.V., and Leo S. Ullman.
Before BRACKEN, J.P., and ROSENBLATT, O'BRIEN and GOLDSTEIN, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, for specific performance of a contract to purchase certain property, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated August 3, 1994, as granted the motion of the defendants API Westchester Associates, Limefield Corporation, N.V., and Leo S. Ullman to dismiss the complaint insofar as asserted against them to the extent that it sought specific performance and denied their cross application for summary judgment on the cause of action seeking specific performance.
ORDERED that the order is reversed insofar as appealed from, with costs, the motion is denied, and the plaintiffs' cross application for summary judgment on the cause of action seeking specific performance is granted, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate judgment directing the plaintiffs to consummate their purchase of the subject property as described in Schedule A annexed to the summons and complaint dated April 12, 1994, within 30 days after service upon them of a copy of said judgment, with notice of entry.
The plaintiffs and the defendants Limefield Corporation, N.V. (hereinafter Limefield) and Leo S. Ullman were partners in the defendant API Westchester Associates (hereinafter API), a limited partnership. The partnership agreement provided, in pertinent part, that if API were to receive an offer to purchase the sole property of API--a parcel of real property located in White Plains, New York--the plaintiffs would have a right of first refusal before API could accept the offer. On June 4, 1993, API, by Limefield and Ullman, entered into a contract with CCA Industries (hereinafter CCA) for the sale of the subject property to CCA, without providing prior notice of CCA's offer to the plaintiffs. On that same day, CCA assigned its interest in the contract to the defendant AMF Bowling Centers, Inc. (hereinafter AMF).
Thereafter, Limefield and Ullman gave the plaintiffs notice of the contract. The plaintiffs rejected the contract as not being in compliance with the provisions of the partnership agreement, but elected to exercise their right of first refusal.
Subsequently, the plaintiffs commenced this action, inter alia, for specific performance compelling the sale of the property to them. Two days after this action was commenced, the contract between API and AMF expired by its terms without consummation of the sale. This appeal by the plaintiffs is from an order which, inter alia, granted the motion of API, Limefield, and Ullman to dismiss the complaint insofar as asserted against them for failure to state a cause of action. The Supreme Court reasoned that the request for a declaratory judgment was academic since the contract had expired, and that the issue of specific performance was irrelevant since there was no offer in existence.
It was error to dismiss the complaint against the movants to the extent that it sought specific performance. The general rule is that "a right of first refusal or preemptive right--as distinguished from an option--does not 'give its holder the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property...
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