Bright Beginnings Day Care, Inc. v. Driftwood Day Camp, Inc.

Mar 14, 2005
Versions:16 A.D.3d 449
791 N.Y.S.2d 624
2005 N.Y. App. Div. LEXIS 2552

In an action for a judgment declaring that the plaintiff Bright Beginnings Day Care, Inc., is the holder of a properly-exercised right of first refusal for the subject property, to recover damages, and for specific performance by the defendant Driftwood Day Camp, Inc., of its alleged obligation to honor the right of first refusal and sell the subject property to the plaintiff for the sum of $3,250,000, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), dated October 8, 2003, as denied its motion for a preliminary injunction and granted the defendants’ cross motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the plaintiff does not hold an enforceable right of first refusal for the subject property.

The Supreme Court properly granted summary judgment to the defendants because the right of first refusal, which omitted essential terms and left terms open for future negotiation, was unenforceable under the statute of frauds and, in any event, was not sufficiently definite (see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91 [1991]; Simmonds v Marshall, 292 AD2d 592 [2002]; see also General Obligations Law § 5-703). Schmidt, J.P., Santucci, Luciano and Mastro, JJ., concur.