The Supreme Court, Suffolk County has dismissed a tenant’s action to enforce a right of first refusal in North Bay Management, Inc. v. Sylport 47, Index No. 14/70613.   The tenant had purported to exercise the right of first refusal, but the landlord argued that it had never accepted a competing offer to buy the property, so the right could not be invoked.  The court agreed with the landlord and explained that a “Right of First Refusal does not give its holder the power to compel and unwilling owner to sell, rather it requires the owner, when it decides to sell, to offer the property first to the party holding the pre-emptive right so that it may be bought at the same terms as the third-party offer.”  The court therefore dismissed the tenant’s action and ordered the notice of pendency to be canceled.

The Appellate Division, Second Department has rejected a challenge to the Town of East Hampton’s Airport Master Plan in Committee to Stop Airport Expansion v. Wilkinson, 2015 NY Slip Op 01941.  The master plan, which was adopted in September of 2010, was the culmination of a more than seven-year study and planning effort that spanned two town administrations.  Shortly after its adoption, a group of residents commenced a proceeding challenging the master plan and claiming that the Town failed to comply with its obligations under the State Environmental Quality Review Act (SEQRA) by failing to consider noise impacts.  After the Supreme Court upheld the Town’s review process and dismissed the proceeding in July of 2012, the residents appealed.  The Second Department’s unanimous decision concluded that the Town “fulfilled its obligations under SEQRA by taking a hard look at potential noise impacts of the proposed actions and made a reasoned elaboration of the basis for its determination…, which thoroughly analyzed noise data and potential noise mitigation based upon noise averaging methodology along with single event noise data.”

The Supreme Court, Suffolk County has granted summary judgment to quiet title to a plaintiff’s property on Georgica Pond, in Wainscott, where a neighbor had erected encroachments and cleared vegetation, in MKG Georgica LLC v. Popcorn, Index No. 2014-3195.  The defendant/neighbor counterclaimed for “adverse possession” of the disputed area, but the Court held that the neighbor failed to establish entitlement to “tack on” to the alleged adverse possession by the prior owner of the neighboring property.

The Appellate Division, Second Department, in Moore v. Trent, has upheld a decision in a contested attorney-fee case finding that the attorney’s agreement failed to provide for a contingency fee under the plain language of the agreement.  Esseks, Hefter & Angel, LLP represented the clients contesting the attorney’s claim to a contingency fee.

EHA is pleased to announce that Southampton attorney, Martin R. Gilmartin, Esq., has joined the firm as Counsel.  As a member of the Southampton legal community since 1975 and an attorney for over 40 years, Mr. Gilmartin brings to the firm his vast experience in real estate, estate planning, and general practice.  Mr. Gilmartin will continue working from his prior office at 25 Bowden Square until January, when he will begin working from EHA’s new Southampton office.  His full bio is available here.

EHA has opened a new satellite office in the heart of Southampton Village, at 30 Main Street.  In addition to its main office in Riverhead, and its other satellite office in East Hampton Village, at 34 Pantigo Road, EHA’s new Southampton office will offer additional flexibility and convenience for holding conferences, closings, and client meetings.

EHA congratulates its partner, Anthony Pasca, for his selection on the 2014 New York Metro Super Lawyers list.  Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, makes its annual selections using a process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The 2014 New York Metro Super Lawyers list is published in Super Lawyers Magazine and in city and regional magazines and newspapers across the country.

The Supreme Court, Suffolk County (Hon. Peter H. Mayer) has granted a seller summary judgment on a downpayment and specific performance dispute in Friedman v. Kriss, Index No. 13-9326.  The action involved competing claims by the sellers and buyers:  the sellers claimed that the buyers breached the contract by failing to make a required installment payment, and the buyers claimed that the sellers breached by failing to deliver an updated “certificate of occupancy” a year prior to the scheduled closing.  The court agreed with the sellers and found that the buyer’s duty to make the installment payment was “time of the essence,” whereas any requirement of the sellers to deliver a certificate of occupancy was not.  The sellers were therefore awarded summary judgment on their claim to retain the downpayment, and the buyers’ claim for specific performance was dismissed.  EHA represented the sellers in the action.

The Supreme Court, Suffolk County has upheld a zoning board’s decision granting a variance to allow the replacement of a nonconforming guest house in Wambold v. Village of Southampton ZBA, Index No. 13-21238 (Hon. Arthur G. Pitts). The case involved a recurring but often misunderstood issue:  is a second dwelling on a residential property a nonconforming use (which would require a use variance to authorize its expansion) or a nonconforming structure with a conforming use (which would only require an area variance)?  The zoning board found the latter, and the Supreme Court, following a line of cases in New York on the issue, agreed.  The court explained that an “application for a variance to enlarge the floor area and density seeks an area variance because the essential use of the land is not being changed.”  Esseks, Hefter & Angel, LLP represented the recipients of the variance in the unsuccessful lawsuit brought by an objecting neighbor.

EHA welcomes Christine Perrucci Smith to its real estate practice group.  Christine joins EHA after having spent much of the past decade involved in residential real estate in a variety of roles.   For more information about Christine, review her bio here.