Opinion
3664.
Decided May 18, 2004.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered on or about October 10, 2003, which, in an action by a commercial tenant to enforce a right of first refusal to purchase a building sold by defendants sellers to defendants buyers, denied defendants' motions to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.
The Law Firm of Adam Leitman Bailey, P.C., New York (Adam Leitman Bailey of counsel), for S.E.K. Corp. and Sherwin Choy, appellants.
Ofeck Heinze, L.L.P., New York (Mark F. Heinze of counsel), for Jarns Holding, Inc. and Jackson Mak, appellants.
Alterman Boop LLP, New York (Arlene F. Boop of counsel), for respondent.
Before: Nardelli, J.P., Tom, Ellerin, Williams, JJ.
Plaintiff's allegations are sufficient to show that its failure to timely exercise its right of first refusal did not prejudice sellers, could result in a substantial forfeiture and should be excused because, upon learning that sellers had granted a right of first refusal to another tenant whose lease pre-existed plaintiff's and who had exercised the right, plaintiff reasonably believed that its own right was illusory ( see J.N.A. Realty Corp. v. Cross Bay Chelsea, 42 N.Y.2d 392, 398-399). The motion court also correctly held that, for present purposes, defendants must submit closing documents demonstrating that the building was in fact purchased on the terms stated in the offer sent to plaintiff. If there were a variance, plaintiff may be entitled to rescission. We have considered and rejected defendants' other arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.