## Facts

- Robert Naldi sought to buy a Manhattan commercial property owned by Grunberg 55 LLC.
- Naldi offered to purchase the property for $50 million.
- The seller’s broker emailed a counterproposal raising the asking price to $52 million and stating that Naldi would have a 30-day right of first refusal to match any better offer, tied to the $52 million price.
- Naldi did not expressly accept the $52 million counterproposal; instead, he proceeded with due diligence.
- The seller’s attorney later sent a draft contract setting the price at $50 million and containing no right of first refusal term.
- Naldi learned the seller was negotiating with a third party at $52 million and attempted to match that price, claiming a right of first refusal; the seller rejected the attempt and sold to the third party.
- Naldi sued to enforce the alleged right of first refusal; the trial court denied the seller’s motion to dismiss.

## Issues

1. Whether an email can satisfy the writing and subscription requirements of New York’s real property Statute of Frauds under General Obligations Law § 5-703.
2. Whether the parties formed an enforceable 30-day right of first refusal, either on the $52 million terms stated in the email or on an alleged later $50 million understanding.

## Decision

- The Appellate Division, First Department reversed and granted Grunberg 55 LLC’s motion to dismiss.
- The court held that an email is not categorically barred from satisfying GOL § 5-703 if its contents and subscription meet statutory requirements.
- The court held no enforceable right of first refusal was formed because Naldi never accepted the email’s $52 million right-of-first-refusal terms, and any later unwritten $50 million right of first refusal was barred by the Statute of Frauds.

## Legal Principles

- An email may constitute a sufficient writing under GOL § 5-703 if it includes the essential terms and is properly subscribed.
- A right of first refusal concerning real property is an interest in real property and must satisfy the Statute of Frauds.
- Even where a writing exists, enforceability requires mutual assent to all essential terms; a party’s failure to accept a counteroffer defeats contract formation.
- An alleged oral or implied-in-fact modification or separate agreement for a real-property right of first refusal is unenforceable absent a signed writing stating the essential terms, including price.

## Conclusion

The court dismissed the complaint because, although an email can satisfy New York’s real-property Statute of Frauds in appropriate circumstances, the record established no meeting of the minds on the email’s $52 million right of first refusal and no written, enforceable alternative right at $50 million.


Naldi v. Grunberg, 80 A.D.3d 1, 908 N.Y.S.2d 639 (1st Dep’t 2010)