South Amherst, and H. G. Fabric Discount, Inc. v. Pomerantz

In South Amherst, and H. G. Fabric Discount, Inc. v. Pomerantz, 130 AD2d 712, 515 N.Y.S.2d 823 (2d Dept, 1987), the proposed sale included a larger parcel than the subject property and the Court held that the right of first refusal attached only to the subject property so that the right of first refusal could not be deemed waived by the failure to elect to purchase the larger parcel. And, in H. G., the third party offer contained a condition that the premises be delivered unoccupied. Since the plaintiff tenant refused to vacate, and was in control of such condition, the condition was impossible for the defendant to meet. Thus there was no bona fide third party offer which would require plaintiff to exercise its right of first refusal and such right was not waived by plaintiff's declining to meet the proposed purchase price. "It is well settled that lessees are not obligated to exercise an option of first refusal or suffer its forfeiture until the lessor has received a bona fide offer from a third party at terms which the lessor is willing to accept" (130 AD2d at 713).