Mario Daniele and Flora Daniele, Plaintiffs (hereinafter "Plaintiffs"), entered into a Right of First Refusal with Clover Lanes, Inc., Defendant (hereinafter "Clover"), on July 18, 1994. That [*2]Agreement provides:

The facts are not in dispute. Clover received a purchase offer February 12, 2014, from "James Grossman, as agent for an entity formed or to be formed..." On February 13, 2014, Clover, in accordance with the Right of First Refusal, sent a letter to Plaintiffs at the address specified in the Right of First Refusal (2 Hastings Circle, Pittsford, New York). The letter was mailed via Certified Mail as required by Paragraph 1.

The letter stated "...if Clover Lanes has not received notification via certified mail from you within 10 days from the date of this notice of your intent to exercise the right of first refusal, then you will have waived all rights to the Premises and Clover Lanes may convey the Premises free and clear of the Right of First Refusal."

Plaintiffs were at their condominium in Deerfield Beach, Florida, during February, 2014. They received a notice on February 25, 2014 from the Post Office in Deerfield Beach that it was holding a piece of Certified Mail Return Receipt Requested. Plaintiffs picked the letter up on February 26, 2014, more than ten days from the date of the letter. Clover was immediately contacted that day by email to indicate an intent to exercise the Right of First Refusal. Plaintiffs sent a Certified letter on February 27, 2014 stating the same thing.

Clover maintains that as the notification of intent to exercise the Right of First Refusal was not received within 10 days of the date the notice was mailed, that Plaintiffs waived all rights to the premises and it could convey the premises free and clear.

Plaintiffs commenced the within action on February 27, 2014, by filing a Summons and Complaint and Notice of Pendency. Clover served its Answer on March 18, 2014.

Delta Sonic Carwash Systems, Inc. (hereinafter "Delta Sonic") turned out to be the Buyer of the premises and filed an Order to Show Cause seeking leave to intervene and for summary judgment. Plaintiffs have cross-moved for summary judgment.

CPLR §1013provides:

Delta Sonic maintains that it is an interested party to the litigation by virtue of having entered into a fully enforceable contract with Clover to purchase the property. It further argues that the same factual issues relevant to Plaintiffs' claims asserted in the Complaint will presumably be addressed in determining Delta Sonic's right to purchase the property under the Contract. Plaintiffs, conversely, assert that the relief they seek is predicated solely upon their agreement with Clover, to which Delta Sonic is not a party, and thus there are no common questions of law or fact and thus Delta Sonic should not be allowed to intervene.

The issue to be determined in the lawsuit filed by Plaintiffs is whether they timely notified Clover of their intent to exercise the Right of First Refusal. Delta Sonic claims that if Plaintiffs prevail in the action, it will be deprived of the "benefit of its bargain and would lose the opportunity to purchase a unique and well-sought out parcel of property." Yet Clover and Delta Sonic both acknowledged that the Contract was contingent on Plaintiffs' exercise of the Right of First Refusal. (¶ 5.2, Contract of Sale).

Delta Sonic cites to the case of Teleprompter Manhattan CATV Corp. v. State Board of Equalization and Assessment, 34 AD2d 1033 (3rd Dept., 1970). In that matter the Court stated that "Intervention should be liberally allowed. (Citation omitted) Intervention is permitted as of right (CPLR 1012) when a person's interest in property may be adversely affected by the judgment."

In that particular case, the city sought to intervene where the question was one of reduction in assessments. There was a definitive interest of the city in regard to assessments. There the Court explained there were "identical questions of law and fact" and "that Special Term's denial of the motion appeared to be based on the erroneous premise that intervention was forbidden by ...Real Property Tax Law."

Delta Sonic also argues that the case of Application of Eberlin, 18 AD2d 1068 (1st Dept., 1963)applies to the within situation. The Landlord, in that case, had intervened in prior proceedings and appeals, and sought to do so again where an article 78 proceeding attacked a determination confirming the maximum rents previously fixed by local rent administration orders. In that instance, the right of the Landlord to rent was the same issue being attacked, a property interest that existed prior to the lawsuit.

The facts in Torrenti v. Taliercio, 150 AD2d 364 (2nd Dept., 1989), according to Delta Sonic, "closely resemble" those of this matter. There the Appellate Division reversed the decision of the lower Court, permitting intervention. The decision to permit intervention was based on the decision of the Appellate Division in a companion case , Torrenti v. Taliercio, 150 AD2d 362 (2nd Dept., 1989). There, the Plaintiff, Talierico, was the President of M & P Santini, Inc., the company [*3]which sought to intervene. Intervention was appropriate because Talierico raised an issue of fact as to whether Taliercio, or M & P Santini, Inc. was the owner of the subject property. The Appellate Division held: "This issue... is crucial in the instant action for specific performance of a contract for the sale of real property." M & P Santini had a clear interest in the proceeding.

Delta Sonic also cites to the case of Weinstein v. Marks, 167 AD2d 704 (3rd Dept., 1990). In that matter, the intevenor brought a summary judgment motion for partial summary judgment to reverse the lower court's decision that Plaintiffs/Respondents could exercise their right of first refusal. In that matter, the Court held:

Clover has served an Answer in this dispute. Plaintiffs argue that Delta Sonic's interest in the lawsuit will be adequately defended by Clover. It is noteworthy that an Affidavit from Dan Morgenstern, the President of Clover, is submitted with Delta Sonic's papers. However, Delta Sonic vehemently denies that its rights are protected by Clover, as Clover will have a contract for sale under the exact same terms whichever party is the ultimate purchaser. Clover has not submitted any response to the within motions, particularly the Plaintiffs' motion for summary judgment.

As in the Weinsteincase, Intervenor has a contract with the Defendant. It is unlikely, given Clover's non response, that Clover will defend the lawsuit. Therefore Delta Sonic shall be allowed to intervene.

Plaintiffs argue that Delta Sonic should not be allowed to move for summary judgment because it does not have standing to do so. Delta Sonic characterizes Plaintiffs' position as a procedural argument that is nothing more than a fiction. Delta Sonic again cites to Weinstein v. Marks, supra. There "...[m]otions for summary judgment followed along with the intervenor's cross motion to intervene. The intervenor also moved for partial summary judgment in his answer..." which was granted by the Court. It is also in the interest of judicial economy to allow Delta Sonic's summary judgment motion, thus it will be considered by the Court.

Plaintiffs have cross moved for summary judgment. Again, the Court notes that Clover has not formally submitted any papers in opposition to the motion. There is the aforementioned affidavit of Dan Morgenstern in support of Delta Sonic's motion.

A motion for summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. CPLR §3212.

Clover's President, Morgenstern, and Delta Sonic take the position that the ten day notice [*4]provision for the Right of First Refusal is triggered by the mailing of the notice by Certified Mail. The Right of First refusal provided Clover"... will give Daniele ten (10) days written notice via Certified Mail..." By its letter notice, Clover added the requirement, not stated in the agreement that a response had to be received "within 10 days from the date of this notice ."

Plaintiffs argue that the interpretation of Clover and Delta Sonic is contrary to the rules of contract construction. The court should construe the agreements so as to give full meaning and effect to the material provisions. A reading of the contract should not render any portion meaningless. Further, a contract should be 'read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose.'" Beal Savings Bank v Sommer, 8 NY3d 318 (2007). An offer may not be accepted until it is made and brought to the attention of the one accepting. Trimble v. New York Life Ins. Co., 234 A.D. 427 (1st Dept., 1932).

In Sasmor v. V. Vivaudou, Inc., 200 Misc. 1020 (Sup. Ct., NY County, 1951), the Court dealt with an employment contract that contained a provision reading "Unless notice to the contrary is given by either party to the other in writing on or before October 1, 1948, this agreement shall be automatically renewed for a like term from January 1, 1949." There the Court held:

In another employment contract situation, Holt v. Seversky Electronatom Corp., 452 F.2d 31 (2nd Cir NY 1971), the Second Circuit Appeals Court held:

Delta Sonic argues that the exercise of the Right of First Refusal was untimely as it was not done within ten days of the mailing of the notice. That interpretation would render the requirement of Certified Mail ineffective. The Right of First Refusal gives Plaintiffs ten days in which to consider the offer. Limitations on the time or unreasonable expectations of delivery of notice have been held invalid. "...[C]ontracts are interpreted objectively and must be construed in accordance with the ordinary expectations of reasonable people. (Citations omitted). Courts will construe a contract reasonably to avoid absurd results. Suburban Auto Rebuilders, Inc. v. Associated Tile Dealers Warehouse, Inc.388 Ill. App. 3d 81 (1st Dist., 2009). The purpose of certified mail is to guarantee delivery for one party and notice of delivery to the other.

Delta Sonic would have the Right of First Refusal expire prior to Plaintiffs knowledge of it. Plaintiffs cite cases, which while not factually exact, do discuss notice provisions, and the absurd result if notice is complete upon mailing. See, Johnson v. Karavassilis, 2 Misc 3d 341 (Sup. Ct., Kings Cty, 2003)("...when tender is made by mail, it occurs at the time of receipt and not at the time of mailing."); Metropolitan Life Ins. Co. v. Young, 157 Misc 2d 452 (civ. Ct., NY County, 1993)("...where the method of mailing requires the addressee to sign a return receipt, the presumption of [*5]receipt which attaches to first class mail is inapplicable, because the mailing cannot be received until the addressee signs for it."); Application of Finest Restaurant Corp., 52 Misc 2d 87 (Sup. Ct, NY County 1966)(discussion of CPLR §7503wherein Court stated: it is the opinion of this court that service by mail, in the fair sense of the statute (supra), is effected on the date when the postal authorities deliver or first attempt to deliver the registered or certified mail. To rule otherwise would be to say that in providing for "return receipt requested" the Legislature was doing a useless act, and this too is a presumption that courts may not and will not indulge in.) It is noteworthy that the piece of certified mail cannot be delivered until the recipient has signed for it. (U.S. Postal Service, Domestic Mail Manual 508.1.1.7).

Delta Sonic argues a Connecticut case, Scoville v. Shop-Rite Supermarkets, Inc., 86 Conn. App. 426 (2004), applies. The issues are similar: "...whether the attempted delivery of a certified letter constitutes sufficient and timely notice of acceptance of an option to renew a lease."

The exercise of a lease renewal was sent to the Landlord by certified mail to three addresses, as well as being sent by regular mail. The post office attempted delivery on January 31st, the final day of the renewal notice period, but the Landlord was not at home. He picked the notice up on February 2nd, when the post office reopened, and thereafter claimed the notice was not timely. The Court held:

The Connecticut court concluded: "The plaintiff's absence from the designated address, whether intentional or unintentional, is overridden by the importance attendant to the certified letter that the postal carrier attempted to deliver, pursuant to the terms of the lease agreement, at the designated address on January 31, 1998.

Delta Sonic cites to a line of cases claiming that New York Courts, concerned that a party may try to avoid notice by ignoring certified mail, have held notice is effective upon mailing. See, e.g., Matter of Cheema v New York City Taxi & Limousine Commn., 2011 NY Slip Op 31890(U) (Sup. Ct., NY County, 2011); Harner v. County of Tioga, 5 NY3d 136 ( 2005); Matter of County of Clinton (Bouchard), 29 AD3d 79(3rd Dept. 2006). Each of those cases can be distinguished, however, as there were multiple forms of service in each case (i.e., regular and certified mail, or posting of notice and certified mail).

The Court is mindful of the risk which arises where a party intentionally ignores certified mail in an effort to avoid service. However, to have the Right of First Refusal expire before Plaintiffs could even be aware of it is also not reasonable. The only logical interpretation of the Right of First Refusal is to conclude that delivery of the notice occurs at the time the postal authorities first give notice of the certified mail, meaning, at that time Plaintiffs effectively became aware of the pending offer and the requirement they take action.^[FN*] Plaintiffs went to their post office the next day, obtained the letter and immediately contacted Defendant and appropriately sent the notice exercising their right. Therefore, Plaintiffs exercise of the Right of First Refusal was timely.

Plaintiffs cross-motion for summary judgment is granted.

Signed at Rochester New York this 14th day of April, 2014.

Matthew A. Rosenbaum

Supreme Court Justice