Mary Chamberlain Trust v. Litke , 512 N.Y.S.2d 295 ( 1987 )

OPINION OF THE COURT

Arthur W. Lonschein, J.

This motion to dismiss the petition is granted, and the petition is dismissed.

The petition concerns a certain parcel of land taken by the City of New York under its powers of eminent domain in 1971, pursuant to the Condemnation Act. The project for which the land was taken appears to have been abandoned in or about 1980. The city now seeks to conduct an auction of a leasehold interest in the land. Petitioner, the former owner of the land, asserts a right of first refusal at fair current market value, pursuant to EDPL 406 (A). There is considerable dispute between the parties as to whether or not this statute applies to this property at all, and if so, whether the statute, as originally enacted, would allow the petitioner a right of first refusal upon the city’s disposition of the property.

The court finds it unnecessary to decide these points, as the proposed auction of leaseholds does not constitute a "disposition” of the property within the meaning of the statute, and, thus, the petitioner has no right of first refusal in any event. As was stated in State of New York v 124 Ferry St. Realty Corp. (87 AD2d 705, 706, appeal dismissed 57 NY2d 675): "The right of first refusal only arises prior to the sale of the property”. This construction of the statutory phrase "dispose of’ is in accordance with its generally understood meaning, the dictionary definition: "to transfer into new hands or to the control of someone else (as by selling or bargaining away)” (Webster’s Third New International Dictionary 654); the commonly accepted legal definition (Black’s Law Dictionary 423 [5th ed 1979]) notes that the phrase is "[o]ften used in [the] restricted sense of 'sale’ only”, and with the decisions of courts of other States (see, e.g., Barnard v Barnard, 91 Ga App 502, 503, 86 SE2d 533, 536).

Therefore, the petition is dismissed. All proceedings in regard to the property involved herein, including any proceedings to evict the petitioner in the Civil Court, are stayed for 30 days from the date hereof.