| CR Best Rd., LLC v Camps Mogen Avraham, Heller, Sternberg,Inc. |
| 2013 NY Slip Op 01312 [103 AD3d 1075] |
| February 28, 2013 |
| Appellate Division, Third Department |
| CR Best Road, LLC, et al., Respondents, v CampsMogen Avraham, Heller, Sternberg, Inc., et al., Appellants, et al.,Defendant. |
—[*1] Jonathan A. Stein, PC, Cedarhurst (Jonathan A. Stein of counsel) and Drew,Davidoff & Edwards, LLP, Monticello, for respondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Cahill, J.), enteredFebruary 23, 2012 in Sullivan County, which partially granted a motion by defendantsCamps Mogen Avraham, Heller, Sternberg, Inc. and Dorothy Berman to partially dismissthe amended complaint against them.
In December 2006, plaintiff CR Best Road, LLC entered into a contract to purchasea vacant parcel owned by defendant Camps Mogen Avraham, Heller, Sternberg, Inc.(hereinafter Camps) in the Town of Bethel, Sullivan County. The contract was allegedlynegotiated and signed by defendant Dorothy Berman, president of Camps. CR Best Roadassigned its contractual rights to plaintiff CR Ranger Road, LLC, which purchased theproperty in 2007. The 2006 contract included an easement across Camps' adjacentremaining property to a lake. Under the contract, a right of first refusal on a sale ofCamps' adjacent remaining property was granted to plaintiffs Charles S. Ramat and IsaacKhafif. Plaintiffs contend that, without providing notice as required by the right of firstrefusal, Camps sold its remaining property in 2010 to the County of Sullivan IndustrialDevelopment Agency, which allegedly was a "nominal" purchaser that leased theproperty to defendant Mogenavland, LLC.[*2]
Plaintiffs commenced this action alleging breachof contract, breach of an implied duty of good faith and fair dealing, and tortiousinterference with contractual rights. Relief sought included, among other things, adeclaratory judgment and injunctive relief regarding the easement, as well as variousmonetary damages asserted as to Camps and Berman (hereinafter collectively referred toas defendants). Although Mogenavland served an answer, defendants made a pre-answermotion to partially dismiss the amended complaint. Supreme Court granted the motiononly to the extent of dismissing the sixth and seventh causes of action[FN1]as to all plaintiffs except CR Ranger Road, and otherwise denied defendants' motion.Defendants appeal.
At this procedural point involving an appeal from a CPLR 3211 motion,[FN2]a minimal showing of potential merit will avoid dismissal of the action (see e.g. AG Capital FundingPartners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; Leonv Martinez, 84 NY2d 83, 87-88 [1994]), and we further observe at the outset that therecord before us is poorly developed, as both parties have inserted purported facts in theirbriefs that are not in the record in an effort to supply pertinent information missing fromthe record. Applying such standard as well as noting the sparse record, we areunpersuaded by defendants' contention that the right of first refusal violated the statute offrauds since it did not adequately set forth the parties or the price (see generally McCormick vBechtol, 68 AD3d 1376, 1378-1379 [2009], lv denied 15 NY3d 701[2010], cert denied 562 US —, 131 S Ct 655 [2010]).
Reading the contractual language regarding the right of first refusal in its entirety(see generally Williams Press v State of New York, 37 NY2d 434, 440 [1975]), itis apparent that Camps was obligated to notify only Ramat and Khafif (and theirattorney) of a potential sale of the remaining property at specific addresses set forth in thecontract. The fact that Ramat and Khafif purported to retain, in the contract, the right tofurther assign the right of first refusal to "their immediate family" or an entity of whichthey were a principal, did not—as contended by Camps—obligate Camps tonotify such unnamed individuals or entities. Once notified, Ramat and Khafif had 30days to notify Camps that they (or their "permitted assignees") were exercising theirright. Such notice had to come from Ramat and Khafif. Thus, the parties who were toreceive notice regarding a third-party offer and who could notify Camps that the right offirst refusal was being exercised are sufficiently established for purposes of the statute offrauds.
The price was also adequately set forth as "the same terms and conditions as in thethird party offer." The fact that Camps ostensibly elected to bundle the relevant propertywith other property it owned in other locations does not render this provision violative ofthe statute of frauds. Just as a "grantor of a right of first refusal cannot defeat the rightmerely by subdividing a parcel into smaller pieces" (McCormick v Bechtol, 68AD3d at 1379), similar logic prevents a [*3]grantor fromeliminating the right by bundling property subject to a right of first refusal with otherproperty.
Defendants' remaining arguments—including their challenge to certain allegeddamages and fees, their contention that the County of Sullivan Industrial DevelopmentAgency is not merely a nominal titleholder as alleged by plaintiffs and their assertion thatthe second cause of action is duplicative—have been considered and foundunavailing in the context of this appeal from a decision on a CPLR 3211 motion.
Mercure, J.P., Rose and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: The sixth and seventhcauses of action involve separate provisions in a rider to the contract that addressed theuse of a camphouse on Camps' property and an agreement regarding the construction of areplacement camphouse. Those causes of action and the issues pertinent thereto are not atissue in this appeal.
Footnote 2: Defendants' notice ofmotion cites to CPLR 3211 (a) (3), (7) and (10). Since CPLR 3211 (a) (3) and (10) donot apply to defendants' first argument, we consider it under CPLR 3211 (a) (7).