This case involves a purported violation of a right of first refusal, as well as claims of ownership by way of prescriptive easement. The defendants now move for summary judgment.

This court had rejected a similar motion brought before the plaintiff had an opportunity to depose the defendants. Since that time, discovery has been completed, and the defendants again move for summary judgment, reiterating their claim that there is no question of fact for a jury to consider. The court has considered the papers submitted regarding the motion, as well as the oral argument and post-argument submissions of both attorneys, and now finds and decides as follows.

The plaintiff was granted a right of first refusal regarding 16.7 acres of vineyard land from the Defendant Plane's Cayuga Vineyard, Inc. (hereinafter Plane). The plaintiff had previously purchased other acreage from Plane for the purpose of operating a winery, and was leasing the acreage referenced in the terms of the right of first refusal.

The right of first refusal provides as follows:

"If at any time during the term of this lease [Plane] receives an offer to purchase all or any [*2]part of the property, [Plane] shall immediately notify [Markan] in writing of the terms of such purchase offer. [Markan] shall have 30 days following receipt of Plane's notice to match such purchase offer and to purchase that portion of the property covered by such purchase offer [the right of first refusal]."

The proof is undisputed that during the life of the right of first refusal Plane desired to sell not only the 16.7 acre parcel, but all of its remaining winery property, and to that end openly placed the property on the market. It is also undisputed that defendant Wesley Wine Co., Inc. (hereinafter Wesley), expressed an interest, and at a minimum, a number of e-mails went back and forth between Wesley and Plane, loosely describing the property, various purchase prices, and other terms.

During the course of these exchanges between Plane and Wesley, Plane concluded that they needed to "call a time out" to any further negotiations until the right of first refusal expired on April 30, 2001. This decision was apparently made because Plane's lawyer made it clear that any purchase contract entered into prior to the expiration of the right of first refusal would trigger the plaintiff's right to purchase. Wesley agreed. Wesley had made it clear that it was not interested in buying the property with the 16.7 acres carved from it, and there is no question but that Wesley became aware that submitting an offer during the life of the right of first refusal would frustrate its interests.

The defendants argue there is no evidence that a written or comprehensive oral agreement was ever reached during the life of the right of first refusal. They also submit that even if an oral agreement had been reached as alleged by the plaintiff, that it would have been unenforceable. GOL 5-703(3). Thus, Wesley was free to walk away with no liability until the written offer was in fact made.

The plaintiff on the other hand, submits that there is clearly a question of fact regarding whether a comprehensive oral agreement was reached prior to expiration of the right of first refusal, and that the defendants thereafter colluded in bad faith to deprive plaintiff of the benefit of the right. That the agreement between Plane and Wesley was not in writing is of no moment it argues, noting that the language of the right of first refusal does not so require.

Predicated upon the moving and responding papers now before the court, it is evident that beyond speculation, there is nothing to suggest a written purchase offer was made during the life of the right of first refusal. The questions to be answered are thus two:

1. Does the right of first refusal's failure to state that any purchase offer made must be in writing mean that the plaintiff could have required sale of the land to it upon receipt by Plane of an otherwise acceptable oral offer?

2. Was it bad faith for Plane and Wesley to agree to not have Wesley reduce an otherwise acceptable offer to writing during the life of the right of first refusal so as to avoid its effect?

This court finds the answer to the first question to be an unqualified no. Any contract for the sale of land is void unless it is in writing. GOL 5-703(3). Wesley could not be bound by any oral agreement. Thus, until such time as Wesley submitted an offer in writing there was, as a matter of law, no offer which Plane could accept and thus no offer regarding which the plaintiff could exercise the right of first refusal.

The answer to the second question must also be answered in the negative. Regarding Wesley, it is enough to note that it was not a party to the right of first refusal, and owed no duty to the plaintiff regarding it. Nor however, does this court find that Plane was guilty of bad faith, even presuming the existence of a comprehensive verbal agreement between Plane and Wesley, and also accepting that the "hold" on reducing it to writing was at Plane's suggestion.

The fact is that the plaintiff received that for which he contracted. A right of first refusal is not an option to buy. Nothing in it requires that owner to sell. It restricts rather, the ability to do so if an acceptable purchase offer is tendered during the life of the right of first of refusal. LIN Broadcasting Corp. v. Metromedia, Inc., 74 NY2d 54, 60 (1989). To the letter Plane abided by this. No offer was made and no interest in the property was conveyed during the life of the right of first refusal. Any "collusion" on Plane's part is not indicative of bad faith, but rather of the taking of a calculated risk that Wesley would make an offer in expected terms after the expiration of the right. Under the plaintiff's version of the facts Wesley did so. This nonethess gave the plaintiff no more right to buy the property than it would have had if, after the right of first refusal's expiration, Wesley's communication to Plane had simply been, "We've changed our minds. Good-bye."

Quigley v. Capolongo, 53 AD2d 714, affirmed 43 NY2d 748, cited by the plaintiff requires no different result. In the Capolongo case, a real estate contract, described by the court as a "sham lease" was in fact executed. Likewise in Maloy v. O'Neill, 242 AD2d 260 (2nd Dept, 1997), a transfer of corporate stock triggered the right of first refusal.

The defendants also move for Summary Judgment to dismiss the prescriptive easement claims that the plaintiff has asserted concerning four parcels of property formerly owned by Plane and currently owned by Wesley. This Court previously found there were questions of fact warranting a trial on the prescriptive easement claims. The basis for the defendants renewed request for summary judgment on these issues stems from testimony that was taken from the plaintiff's owner, Thomas Challen, indicating that he was aware legal title to some of the parcels in question was still in Plane's name. This Court finds that the same is not dispositive of the issue and that summary judgment is not appropriate. As noted by counsel for the plaintiff, the overall record to date shows that, indeed, plaintiff believed it was claiming ownership of the premises as a matter of right.

"As it is not necessary that the person exercising the wrongful use verbally assert a claim of right to make such use, so, it is conceived, it is not necessary that he believes himself to have such a right, that is, a mental claim of right is no more necessary than a verbal claim of right. [*4]It is recognized a good faith is not necessary to entitle one to benefit of the statute of limitations and there is no reason for regarding it as necessary for the application of the doctrine of prescription." Tiffany Real Property, 3rd Ed., Chap. 27, Prescription for Incorporeal Things, § 1197, Necessity of Claim of Right.

Counsel for the defendants is directed to submit a proposed judgment in their favor on the plaintiff's first, second and third causes of action, relating to the alleged breach of the right of first refusal. The defendant's motion on the prescriptive easement cause of action contained in the fourth cause of action is hereby denied.

So ordered.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Dated: November 1, 2004

HON. DENNIS F. BENDER

Acting Supreme Court Justice