
    Bakerhood, Inc., Respondent, v S.E.&K. Corp. et al., Appellants.
    [776 NYS2d 471]
   Order, Supreme Court, New York County (Walter B. Tolub, J.), entered on or about October 10, 2003, which, in an action by a commercial tenant to enforce a right of first refusal to purchase a building sold by defendant sellers to defendant buyers, denied defendants’ motions to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

Plaintiffs allegations are sufficient to show that its failure to timely exercise its right of first refusal did not prejudice sellers, could result in a substantial forfeiture and should be excused because, upon learning that sellers had granted a right of first refusal to another tenant whose lease preexisted plaintiffs and who had exercised the right, plaintiff reasonably believed that its own right was illusory (see J.N.A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392, 398-399 [1977]). The motion court also correctly held that, for present purposes, defendants must submit closing documents demonstrating that the building was in fact purchased on the terms stated in the offer sent to plaintiff. If there were a variance, plaintiff may be entitled to rescission. We have considered and rejected defendants’ other arguments. Concur—Nardelli, J.P., Tom, Ellerin and Williams, JJ.  