Opinion
October 15, 1998
Appeal from the Supreme Court, New York County (Emily Goodman, J.).
EBC's exercise of its right of first refusal to purchase the subject commercial condominium unit was timely, coming as it did within 30 days of EBC's final receipt of information it had requested from the seller, which information was relevant to EBC's decision as to whether to purchase the unit. Further, the condominium by-laws do not, as plaintiff urges, prohibit EBC from exercising its right of first refusal and then selling the purchased units to a third-party developer. Although in light of these conclusions we agree with Supreme Court that the action should be disposed of in defendants' favor, inasmuch as the complaint seeks a declaration as to the validity of EBC's exercise of its right of first refusal, it should not have been dismissed. The proper remedy when a declaration is sought is a declaration in favor of the prevailing party ( Cohen v. Employers Reins. Corp., 117 A.D.2d 435, 437). Accordingly, we modify to the extent of declaring in defendants' favor that the subject right of first refusal was in fact validly invoked by EBC. In view of this outcome it follows that plaintiff's notice of pendency was properly canceled ( see, Riina v. Bitterlich, 114 A.D.2d 1023, 1024).
Concur — Milonas, J.P., Rosenberger, Ellerin and Rubin, JJ.