The opinion of the court was delivered by: BATTS
DEBORAH A. BATTS, United States District Judge.
Plaintiff, The 28 Cliff Street Condominium Association ("Condo Association"), brings this action against Defendants Resolution Trust Corporation ("RTC"), Nassau Federal Savings and Loan Association ("Nassau Federal"), Prentiss Properties Limited, Inc. ("Prentiss Properties"), Greg T. Noebel ("Noebel"), and Belcoo Corporation ("Belcoo"), alleging breach of contract, fraud, misrepresentation, detrimental reliance, conspiracy, and inducement to breach of contract, among others. Defendants move to dismiss the Complaint and vacate the lis pendens. Plaintiff opposes the motion. For the reasons stated below, Defendants' motion is granted in part, and denied in part.
As receiver for Nassau Federal, the RTC came to hold title to a foreclosed condominium, Commercial Unit #1, in the 28 Cliff Street Condominium Association located at 28 Cliff Street, New York, New York. By way of its agent, Prentiss Properties, the RTC negotiated to sell Commercial Unit #1 to Defendant Belcoo for $ 110,000, all cash.
Believing that a right of first refusal existed in favor of the Condo Association -- namely, the Plaintiff -- Noebel, acting for Prentiss Properties, offered to sell the property to the Condo Association for the same price that Belcoo had agreed to pay.
Noebel subsequently attempted to revoke the offer made to the Condo Association by letter and telephone. The revocation letter sent by registered mail, however, was returned to Prentiss Properties marked "addressee unknown." Further, the success of the telephone revocation is disputed. After the attempted revocation, the RTC proceeded to close the sale with Belcoo, and title was transferred to Belcoo.
The Condo Association then brought suit in the New York County Supreme Court by Order to Show Cause, seeking to set aside and vacate the sale of Commercial Unit #1 to Belcoo and to have the property transferred to the Condo Association. RTC removed the action to this Court on the basis of the presence of the RTC as a defendant. At some point, either before or after transfer of title to Belcoo, the Condo Association placed a lis pendens on the unit.
Defendants RTC, Nassau Federal, Prentiss Properties, and Noebel now move to dismiss the Complaint and vacate the lis pendens for lack of subject matter jurisdiction. Defendant Belcoo has not answered the Complaint, nor joined in this motion. Plaintiff Condo Association opposes the motion. Defendants make the following six arguments: (1) the Court lacks jurisdiction because Plaintiff has not exhausted the appropriate administrative remedies; (2) the right of first refusal has been preempted by FIRREA; (3) New York law does not recognize a right of first refusal on these facts; (4) a contract was never formed between the Plaintiff and RTC; (5) the Court lacks subject matter jurisdiction to impose equitable relief, and (6) FIRREA mandates dismissal of Defendant Belcoo. Each argument will be dealt with in turn.
On February 21, 1995, subsequent to submission of this motion, the Condo Association filed a proof of claim with the RTC. (Letter from Miller to Hindy of 3/8/95.) No action was taken with respect to the proof of claim prior to November 22, 1995. (Letter from Hindy to Court of 11/22/95.)
A. Exhaustion of Administrative Remedies
The Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA") requires a claimant against the RTC to exhaust the administrative claims process before proceeding against the RTC in court. 12 U.S.C. § 1821(d)(6)(A) & (13)(D)(i); RTC v. Elman, 949 F.2d 624, 627 (2d Cir. 1991); Prieto v. Standard Federal Savings Bank, 903 F. Supp. 670, 672-73 (S.D.N.Y. 1995). Prior to filing this suit, the Plaintiff Condo Association made no administrative claim with the RTC. Rather, the Plaintiff waited until February 21, 1995, to file a notice of claim in accordance with the administrative procedures under FIRREA. However, because 180 days have expired since Plaintiff's administrative filing, this Court does have subject matter jurisdiction over the Complaint. 12 U.S.C. § 1821(d)(5)(A)(i) & (6)(A); see Prieto, 903 F. ...