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Naldi v Grunberg

Supreme Court of New York, Appellate Division, First Department

October 5, 2010, Decided; October 5, 2010, Entered

600707/08, 2116

Opinion

 [*3]  [**640]  Friedman, J.

The complaint in this action seeks enforcement of a right of first refusal that plaintiff claims he held for 30 days while conducting due diligence in contemplation of entering into a contract to purchase real property. Defendant Grunberg 55 LLC, appealing from the denial of its motion to dismiss, argues, among other things, that the alleged right of first refusal is not enforceable under the applicable statute of frauds (General Obligations Law § 5-703) because it was memorialized in an e-mail only. 1  We reject this argument, reaffirming our prior decisions that have held  [***2] (albeit without extensive discussion) that ] an e-mail will satisfy the statute of frauds so long as its contents and subscription meet all requirements of the governing statute. In this case, however, the record--including plaintiff's admissions in the complaint, the undisputed documentary evidence of the parties' dealings, and the affidavit of plaintiff's representative in the negotiations--establishes as a matter of law that plaintiff never accepted the right of first refusal proposed in the e-mail. The right to match "any legitimate, better offer" proffered by the e-mail was tied to the asking price of $52 million. Given that the parties did not tentatively agree on the price term linked to the right of first refusal proposed in the e-mail, there was never any meeting of the minds between the parties as to that right of first refusal. Although plaintiff apparently alleges that the parties subsequently reached an oral or implied-in-fact agreement that plaintiff would have a right of first refusal based on a different price term ($50 million),] any such unwritten right of first refusal is unenforceable under General Obligations Law § 5-703. Accordingly, defendant's motion to dismiss the complaint  [***3] should have been granted.

The complaint alleges that, on February 9, 2007, plaintiff, a citizen and resident of Italy, offered, through his broker, to  [*4] purchase the property owned by defendant at 15-19 West 55th Street in Manhattan for $50 million. Three days later, on February 12, defendant's broker, Mark Spinelli of Massey Knakal Realty Services, responded to plaintiff's broker with an e-mail that stated in pertinent part:

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80 A.D.3d 1 *; 908 N.Y.S.2d 639 **; 2010 N.Y. App. Div. LEXIS 7173 ***; 2010 NY Slip Op 7079 ****

 [****1]  Robert Naldi, Respondent, v Michael Grunberg, Defendant, and Grunberg 55 LLC, Appellant.

Subsequent History: As Amended October 7, 2010.

Leave to appeal denied by Naldi v Grunberg, 16 NY3d 711, 947 NE2d 1194, 2011 N.Y. LEXIS 672, 923 NYS2d 415 (N.Y., May 3, 2011)

Prior History: Appeal from an order of the Supreme Court, New York County (Herman Cahn, J.), entered December 15, 2008. The order, insofar as appealed from, denied the motion of defendant Grunberg 55 LLC to dismiss the complaint as against it.

Naldi v Grunberg, 2008 N.Y. Misc. LEXIS 10776 (N.Y. Sup. Ct., Dec. 10, 2008)

CORE TERMS

e-mail, electronic, right of first refusal, statute of frauds, signature, commerce, terms, due diligence, Technology, records, electronic communication, real property, subscribed, alleges, parties, counteroffer, transactions, memorandum, contracts, broker, electronic means, binding, meeting of the minds, applicable statute, legislative intent, first refusal, memorialized, subscription, purposes, linked

Computer & Internet Law, Contracts, Electronic Contracts, Digital Signatures, Contracts Law, Statute of Frauds, Requirements, Writings, Internet Business, Electronic Contracts, Real Property Law, Purchase & Sale, Option Contracts, Rights of First Refusal, Signatures, Business & Corporate Compliance, Contract Formation, Offers, Counteroffers, General Overview, Acceptance