Plaintiff runs a business and leases from building owner.  Building owner gives a right of first refusal to the tenant, and then proceeds to try to sell the building.  Plaintiff may or may not have enough money to purchase, but in any event, it all goes wrong.  Will the Attorney-Broker be successfully sued?

Dahari v Villafana  2016 NY Slip Op 31859(U)  October 3, 2016  Supreme Court, Kings County
Docket Number: 20219/2013  Judge: Sylvia G. Ash tells us that the lawyer remains in the case for now.

“Plaintiff seeks to invalidate the sale of real property located at 1031 Flushing Avenue, Brooklyn, New York (the “Premises”) and to obtain specific performance. Villafana, the owner of the premises, entered into a lease agreement with Plaintiff on May 13,2005. Pursuant to the lease, Plaintiff agreed to occupy a commercial space on the premises. Plaintiff and Villafana renewed the lease in May 15,2010 and included a provision that provided Plaintiff a right of first refusal to purchase the premises. r t , I On January 18,2013, Villafana decided to sell the premises for $1,225,000. In facilitating the purchase, Morgan’s assignor, Guinefort Group, LLC, entered into a Contract of Sale with Villafana. In the Contract of Sale, Villafana represented that Plaintiff’s lease did not have a right of first refusal. Further, Villafana agreed to obtain a Tenant Estoppel Certificate (“Certificate”) from Plaintiff prior to closing. Villafana did not obtain the Certificate from Plaintiff, but instead provided Morgan a Certificate that he signed on Plaintiffs behalf. On August 15,2013, Villafana and Morgan closed on the Contract of Sale. In purchasing the premises, Morgan obtained a loan and line credit from Signature, secured by two mortgages on the premises. Plaintiff brought this action on November 15, 2013, as a means of invalidating the Contract of Sale and to obtain specific performance on its right of first refusal. Morgan and Signature moved for summary judgment. Morgan argued that it did not have notice of Plaintiff’ s right of first refusal because Plaintiff did not record her lease. Next, Morgan argued that Plaintiff was aware of the Contract of Sale in February 2013 and did not attempt to exercise her right of first refusal until November 15,2013. Further, Morgan maintained that Plaintiff was not ready, willing and able to purchase the premises, pointing to Plaintiff’s admission of having a net worth no greater than $133,674. Signature argued that its mortgages were superior to Plaintiff’s right of first refusal because Plaintiff did not record her lease. According to Signature, prior to the August 2013 closing, it conducted a title search and obtained assurances from Morgan that Plaintiff did not have a right of first refusal. Further, Signature argued that Plaintiff “attomed” or waived her right to object to Morgan’s ownership of the premises because Plaintiff payed rent to Morgan after the closing.”

“Turning now to whether the third-party complaint should be dismissed. Under CPLR §1007, a defendant, after serving its answer in the main action, may start a third-party suit against a third-party defendant by serving a third-party summons and complaint, along with all prior pleadings from the main action. An omission with respect to service of all prior pleadings is not a jurisdictional defect, and may be cured under CPLR §2001 (see Jackson v. Long Island Lighting Co., 59 AD2d 523 [2d Dept 1977]). Here, the alleged defects in service by Villafana are not sufficient to warrant dismissal of the third-party complaint. Therefore, Taveras’s motion is denied. Accordingly, Morgan’s and Signature’s motions to reargue are granted. After reconsideration, Morgan’s motion for summary judgment is DENIED and Signature’s motion is GRANTED. Taveras’ motion to dismiss the third-party complaint is DENIED.”