        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1028
CA 15-00397
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


JANE A. GILMORE, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

MARK B. JORDAN AND LEONARD P. JORDAN, ALSO KNOWN
AS LEONARD P. JORDAN, JR., DEFENDANTS-APPELLANTS.


KARPINSKI STAPLETON & TEHAN, P.C., AUBURN (ADAM H. VANBUSKIRK OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

CARBONARO LAW OFFICES, P.C., AUBURN (PATRICK A. CARBONARO OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Cayuga County
(Thomas G. Leone, A.J.), entered November 4, 2014. The judgment
granted the motion of plaintiff for summary judgment seeking a
declaration that plaintiff is the owner in fee simple absolute of the
title to certain real property.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action pursuant to RPAPL
article 15 seeking a determination on the viability of a right of
first refusal in favor of defendants. In 1979, plaintiff’s husband
(hereafter, Mr. Gilmore), as seller, and defendants, as buyers,
executed a contract for the sale of a 71-acre parcel of real property.
The contract stated that it “shall constitute a binding contract of
purchase and sale and it shall bind the heirs, executors, and assigns
of both [defendants] and [Mr. Gilmore].” The contract also provided
that “[defendants] shall have the right of first refusal to purchase
the 29 acres of land next north of parcel to be conveyed hereunder.”
In 1980, the parties closed the transaction, and the warranty deed
provided, inter alia, that Mr. Gilmore “grant[ed] and release[d]” the
71-acre parcel to defendants and “their heirs and assigns forever.”
The warranty deed also provided that “[defendants] shall have the
right of first refusal to purchase the 29 acres of land next north of
parcel conveyed hereunder.” In 2001, Mr. Gilmore died testate,
leaving all of his real property to plaintiff. In 2013, plaintiff
entered into a contract with a third party to sell a parcel of real
property which included the 29 acres of land covered by the right of
first refusal. In 2014, plaintiff commenced this action and
subsequently moved for summary judgment seeking a declaration that she
is the owner in fee simple absolute of the title to the disputed 29
                                 -2-                          1028
                                                         CA 15-00397

acres. Plaintiff’s rationale was that the right of first refusal was
extinguished upon Mr. Gilmore’s death because the 1980 deed did not
bind his heirs and assigns with respect thereto. Supreme Court
granted the motion, and we affirm.

     The right of first refusal provision contained in the 1979
contract “merged into the subsequent [1980] deed executed pursuant to
the [contract],” and “[a]ny inconsistencies between the contract and
the deed are presumed to be explained and governed solely by the
latter” (Spiegel v Rickey, 285 AD2d 879, 880 [internal quotation marks
omitted]). Therefore, contrary to defendants’ contention, the right
of first refusal was extinguished upon the death of Mr. Gilmore
inasmuch as the 1980 deed did not purport to bind Mr. Gilmore’s heirs
and assigns (see Adler v Simpson, 203 AD2d 691, 692-693; Smith v
Estate of LaTray, 161 AD2d 1178, 1179). We reject defendants’ further
contention that the “savings provision” of EPTL 9-1.3 (b) requires
this Court to uphold defendants’ power to exercise the right of first
refusal. Indeed, we see no provision in the deed that needs to be
“saved.” Rather, because there is nothing in the deed to indicate
that the right of first refusal was meant to be anything other than “a
personal agreement [between the parties], binding on themselves only
and not their [heirs] and assigns” (Adler, 203 AD2d at 692-693), we
are compelled to conclude that the right of first refusal was
extinguished upon the death of Mr. Gilmore.

     Defendants remaining contentions have been raised for the first
time on appeal, and thus they are not properly before us (see
Ciesinski v Town of Aurora, 202 AD2d 984, 985).




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
