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Gofman v. Dell'Aquila

February 4, 2008

SLAVIK GOFMAN AND JENNIFER GOFMAN, PLAINTIFFS-RESPONDENTS,
v.
JOSEPH DELL'AQUILA AND MAUREEN DELL'AQUILA, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-454-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 26, 2007

Before Judges Wefing, Parker and R. B. Coleman.

Defendants Joseph and Maureen Dell'Aquila appeal from a January 3, 2007 order denying reconsideration of two earlier orders, dated June 8, 2006, that (1) granted summary judgment in favor of plaintiffs Slavik and Jennifer Gofman, declaring that plaintiffs had lawfully exercised their right of first refusal (ROFR) and were entitled to compel defendants to sell land to plaintiffs and (2) denied defendants' cross-motion for summary judgment. For the reasons set forth below, the orders of the trial court denying reconsideration and disposing of the cross-motions for summary judgment are reversed.

Defendants owned a two-acre parcel of land located in Alpine on which a single-family residential dwelling was situated. In 2000, defendants listed that property for sale. Plaintiffs expressed an interest in the property but could not afford to purchase it in its entirety. Upon plaintiffs' suggestion, the parties entered into a contract pursuant to which defendants subdivided the land into two separate lots of approximately one acre each. The lot on which the dwelling was located was designated Lot 10.01. That lot was purchased by plaintiffs. Defendants retained ownership of the vacant lot designated Lot 10.02. Additionally, the parties agreed that defendants would extend to plaintiffs a ROFR in connection with the vacant lot. The terms and conditions of the ROFR, memorialized in the January 29, 2001, deed that transferred title to Lot 10.01, were as follows:

RIGHT OF FIRST REFUSAL

Together with a right of first refusal to Grantees [plaintiffs] regarding the adjacent vacant parcel of land now owned by Grantors [defendants] know [sic] as Lot 10.02, Block 71 in the Borough of Alpine, New Jersey upon the following conditions:

1. Grantors shall leave a notice of receipt of a bona fide offer to purchase Lot 10.02 at Lot 10.01 by posting same upon the door with any individual inside the structure and by simultaneously faxing a copy of the same to fax number: [].

2. Grantees shall have 5 business days from the posting and/or faxing of Grantees' notice to advise Grantors in writing of their intention to exercise said option at the stated offer price together with a bank or certified check payable to Grantors in the amount of 10% of the purchase price agreeing to close at the offices of Grantors' attorney within 60 days to the next nearest business day. There shall be no conditions to closing other than Grantors conveying clear title.

3. Grantees shall deliver the balance of the purchase price within the time frame listed herein. Grantees' failure to perform shall entitle the Grantors to retain the deposit and thereafter there shall be no further obligations between the parties and this Right of First Refusal shall expire.

4. Time shall be of the essence for all periods referred to herein.

5. This Right of First Refusal shall be extinguished without further documentation upon Grantors' execution or recording of a deed to Lot 10.02.

6. In the event, Grantors fail to consummate a sale of Lot 10.02 with any bona fide purchaser that Grantee has not elected to exercise, this option shall remain in full force and effect.

In or around December 2005, defendants listed the vacant lot for sale, and on or around December 23, 2005, they advised plaintiffs that they had received an offer from a third party in the amount of $1,475,000. According to defendants, the offer "was considerably lower than the listed price for the Property." Nevertheless, in accordance with the procedure established for the ROFR, defendants' real estate attorney, Steven Delinko, faxed and delivered a letter to plaintiffs advising plaintiffs of the following:

Pursuant to the terms and conditions set forth in the Right of First Refusal contained in a [] deed . . . between [defendants], as Grantor, and [plaintiffs], as Grantee, please be advised we have received a bona fide offer to purchase the Property for a price of One Million Four Hundred Seventy-Five Thousand and 00/100 ($1,475,000.00) Dollars with One Hundred Forty-Seven Thousand Five Hundred and 00/100 ($147,500.00) Dollars down and closing to occur within sixty (60) days. Pursuant to the ROFR, you have until ...


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