Judges： Asch, Follows
Filed Date： 7/19/1984
Status： Precedential
Modified Date： 10/28/2024
— Order, Supreme Court, New York County (Louis Grossman, J.), entered October 26, 1983, denying plaintiff’s motion for injunctive relief, granting defendants’ cross motion to dismiss the complaint and canceling and discharging a lis pendens which had been filed against the premises, reversed, on the law, without costs or disbursements, the cross motion to dismiss denied, the complaint and notice of pendency reinstated and the motion for preliminary injunctive relief granted, enjoining and restraining defendants during the pendency of the action from conveying, exchanging, encumbering or otherwise transferring the premises known as 122 Water Street, New York, New York. 11 The action was brought for specific performance of a right of first refusal or preemptive right, granted to Anthony DeLyra, the successful bidder at a referee’s foreclosure sale held in 1967. By agreement entered into December 21, 1967, DeLyra assigned to Firestone his bid to purchase the property. In exchange, Firestone agreed to give DeLyra 30% of the net profits derived from operation or sale of the property, with Firestone to have “the sole and exclusive management of the subject property including the sole right to negotiate and consummate the sale or mortgaging of said property, provided, however, that in the event of a proposed sale Anthony delyra shall have the first right to purchase said property on the same terms and conditions as the original offer of the proposed purchaser.” The agreement provided for notice to be given to DeLyra by certified mail, following which DeLyra was to be afforded a 10-day period within which to exercise his preemptive right. H On June 10, 1981, appellant Anasae Realty Corp. obtained an assignment of DeLyra’s right of first refusal, the sixth successive assignment of this preemptive right. Prior to this latest assignment, on April 16, 1980, respondent Joyce, the owner of the adjacent property, was granted a three-year option to purchase at a price of $325,000 during the first two years and $357,000 during the third year. On March 5,1982, during the second year, Joyce exercised the option to purchase at the agreed price. Subsequently, there were negotiations to effect an exchange of property in lieu of a purchase, which, according to plaintiff, was designed to deprive it of its preemptive right to purchase the property “on the same terms and conditions as the original offer of the proposed purchaser.” f Special Term dismissed the complaint, concluding that the right of first refusal contained in the agreement violated New York’s statutory rule against remoteness in vesting contained in EPTL 9-1.1 (subd [b]): “No estate in property shall be valid unless it must vest, if at all, not later than twenty-one years after one or more lives in being at the creation of the estate and any period of gestation involved.” H In holding that the preemptive right violated the rule against perpetuities, the court, for the most part, relied upon Buffalo Seminary v McCarthy (86 AD2d 435, affd 58 NY2d 867). However, the option at issue in Buffalo Seminary (supra, p 437), unlike the language used by the parties here, was granted to the plaintiff, “ ‘its successors and assigns’ ” and the agreement was made binding upon “ ‘the heirs, executors, administrators, successors and assigns of the parties hereto.’ ” No similar language is provided in the December 21,1967 agreement between Firestone and DeLyra. The fact that the preemptive right was assigned by DeLyra six days after the agreement evinces an intention that the right be assignable. However, on this record, and in view of the procedural posture of the appeal, we cannot finally resolve the legal issues as to the applicable measuring life or lives in terms of the rule against perpetuities and whether the option was unlimited in duration or was to be measured by the life of DeLyra and/or Firestone. (Cf. Witt v