You are here: / / HERE THE RIGHT OF FIRST REFUSAL IN THE ORIGINAL DEED DIVIDING THE PROPERTY...
, ,

HERE THE RIGHT OF FIRST REFUSAL IN THE ORIGINAL DEED DIVIDING THE PROPERTY INTO EIGHT PARTS WAS A VALID DEFENSE TO THE PARTITION ACTION; HOWEVER, IF DEEMED TO RUN WITH THE LAND, THE RIGHT OF FIRST REFUSAL VIOLATED THE RULE AGAINST PERPETUITIES (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the right of first refusal in the original deed which divided the property into eight parts was a valid defense to the partition action. However the right of first refusal could not be enforced because it violated the rule against perpetuities:

A right of first refusal . . . is a preemptive or contractual right to ‘receive an offer'” … . “[I]t is a restriction on the power of one party to sell without first making an offer of purchase to the other party upon the happening of a contingency” … . A reasonable, valid, and enforceable right of first refusal constitutes a good defense to a partition action … . However, with narrow exceptions not applicable here, rights of first refusal are subject to the rule against perpetuities and are thus invalid if it is possible for the future interests they represent to vest outside the prescribed time period (see EPTL 9-1.1[b] …).

Here, the 1966 deed demonstrates that the right of first refusal was for the benefit of the original grantees only … . Moreover, to the extent that the surrounding circumstances demonstrate an intent that the covenant should run with the land … , the restriction would violate the rule against perpetuities (see EPTL 9-1.1[b]…). Block 865 Lot 300, LLC v Baione, 2024 NY Slip Op 04189, Second Dept 8-14-24

Practice Point: A right of first refusal in a deed is a valid defense to a partition action.

Practice Point: Here the right of first refusal in the original deed applied only to the original grantees and, if deemed a covenant which runs with the land, it violated the rule against perpetuities.

 

You might also like
DEFENDANT ENTITLED TO PERMISSIVE ADVERSE INFERENCE JURY INSTRUCTION BASED UPON THE PEOPLE’S LOSS OR DESTRUCTION OF EVIDENCE REQUESTED BY THE DEFENDANT (SECOND DEPT).
SUPREME COURT SHOULD NOT HAVE REVERSED THE ZONING BOARD OF APPEALS AND GRANTED THE PETITION FOR A VARIANCE TO CONSTRUCT AN IN-LAW APARTMENT, COURT’S LIMITED REVIEW POWERS EXPLAINED (SECOND DEPT).
DEFENDANT’S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT).
PLAINTIFFS RAISED QUESTIONS OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE APPLIED TO RENDER THE LEGAL MALPRACTICE CAUSES OF ACTION TIMELY (SECOND DEPT).
VIOLATIONS OF ORDINANCES, ADMINISTRATIVE RULES OR REGULATIONS DO NOT CONSTITUTE NEGLIGENCE PER SE, ONLY VIOLATIONS OF STATUTES CONSTITUTE NEGLIGENCE PER SE (SECOND DEPT).
THE JURY NOTES SHOULD HAVE BEEN READ VERBATIM TO COUNSEL, NOT PARAPHRASED BY THE JUDGE; THIS MODE OF PROCEEDINGS ERROR REQUIRES REVERSAL (SECOND DEPT).
A CONDITIONAL ORDER OF DISMISSAL PURSUANT TO CPLR 3216 WHICH DOES NOT STATE THE FAILURE TO FILE A NOTE OF ISSUE WITHIN 90 DAYS WOULD BE THE BASIS OF A MOTION TO DISMISS THE COMPLAINT IS INEFFECTIVE AND CAN BE VACATED (SECOND DEPT).
THE JUDGE SHOULD NOT HAVE, SUA SPONTE, INCREASED A PENALTY TO WHICH THE PARTIES HAD AGREED IN A SO-ORDERED STIPULATION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TO, SUA SPONTE, DECIDE BRANCHES OF A MOTION AND CROSS-MOTION ON A GROUND NOT... PURSUANT TO THE PRIMARY JURISDICTION DOCTRINE, PLAINTIFFS’ COMPLAINTS...