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Scott E. Mollen Scott E. Mollen

Contracts—Right of First Refusal Cannot be Exercised After a Prior Exercise and Default—Sanctions Granted

A plaintiff claimed that a defendant breached an agreement to give the plaintiff a right of first refusal (ROFR) to purchase real property. The defendant moved to dismiss, to vacate a notice of pendency and for sanctions. The court granted the motion to dismiss, since the ROFR no longer exists—“a party related to plaintiff exercised it but then defaulted.” The court categorized the action as “frivolous” and awarded “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees.”

The defendant owned the subject real property. The plaintiff owned a neighboring property. Pursuant to a July 2006 written agreement (agreement), the defendant’s predecessor and the plaintiff had agreed that the plaintiff and any successors or assigns formed by the plaintiff’s managing member would have a ROFR to buy the defendant’s property.

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