BMK Obtains an Appeals Court Decision that Preserves a Summary Judgement Victory in its Client’s Favor

In a case of first impression, Robert Berluti and Ted Whitesell secured Summary Judgment for a BMK client in a dispute over whether a plaintiff/tenant’s right of first refusal to purchase real estate should trump BMK’s client’s option to purchase the same property. The tenant’s right of first refusal was triggered and exercised by the tenant resulting in its purchase of the real estate in question. The tenant then assigned its rights in the purchase and sale agreement for the property to an affiliated entity, left its lease in place and claimed the right of first refusal remained intact and should trump the option to purchase. The Land Court entered summary judgment determining the option to purchase was not subordinate to the right of first refusal, which the Land Court held was extinguished when exercised. The Appeals Court affirmed, without reaching the substance of the plaintiff/appellant/tenant’s new argument because it was asserted for the first time on appeal.