In a March 28, 2013, decision by Justice Pines, the court denied defendant’s motion to dismiss plaintiffs’ action to recover under a series of promissory notes. Defendant had purchased property from a non-party who previously had issued a series of promissory notes to plaintiffs relating to a mortgage obligation on a property in Holbrook and… Continue Reading
Category Archives: Industry: real estate
Subscribe to Industry: real estate RSS FeedMotion to Dismiss and Cross Motion for Summary Judgment Denied in Suit for Real Estate Broker’s Commission: Pinnacle Realty of NY LLC v 255 Butler LLC
Posted in Breach of Contract, Brokerage Commission, CPLR 3211, CPLR 3212, Industry: real estate, Justice Schmidt, David I., Kings, Quantum Meruit, Summary Judgment, Unjust EnrichmentIn a April 10, 2013 decision by Justice Schmidt, the court denied the defendants’ motion to dismiss and also denied the plaintiff’s cross-motion for summary judgment. Pinnacle sought to recover a real estate broker’s commission it alleged was owed from the attempted sale of real property (the “Property”) that was owned by the corporate defendant… Continue Reading
Recording Acts Defeat Defendant’s Claim of Priority in Connection with a Subsequent Consolidated Mortgage
Posted in Default, Foreclosure, Industry: real estate, Justice Whelan, Thomas, Mortgages, Suffolk, Summary JudgmentIn a March 5, 2013, decision by Justice Whelan, the court granted plaintiff-mortgagee’s motion for summary judgment on its action for foreclosure and sale of a commercial property, as well as a deficiency judgment, against defendant-mortgagor and guarantors. The subject mortgage was dated from September 2006. One of the defendants, Suffolk County National Bank (“SCNB”),… Continue Reading
Purported Non-Compliance with Requirements of Administrative Order 548/10 Insufficient to Vacate Judgment of Foreclosure and Sale
Posted in Administrative Order 548/10, CPLR 3408, CPLR 5015, Default, Foreclosure, Industry: real estate, Justice Whelan, Thomas, Mortgages, Motion to Vacate, SuffolkIn a February 19, 2013, decision by Justice Whelan, the court denied plaintiff-mortgagee-lender’s motion to vacate a judgment of foreclosure and sale, as well as the order of reference, and to extend the notice of pendency. Plaintiff moved on the basis of an alleged failure by a prior servicer to comply with the new substantive… Continue Reading
Summary Judgment Granted in Part and Denied in Part in Suit Brought by Age-Restricted Retirement Community Homeowners Association against Sponsor: The Waterways at Bay Pointe Homeonwers Assoc., Inc. v Waterways Dev. Corp.
Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 3212, Fraud, Industry: real estate, Justice Emerson, Elizabeth, SLAPP Suit, Suffolk, Summary JudgmentIn a February 25, 2013 decision by Justice Emerson, the court denied in part and granted in part the plaintiff’s motion and the defendant’s cross motion for summary judgment, respectively. The case arose from a 1997 agreement (the “1997 Agreement”) entered into by the defendant sponsor (“Sponsor”) of an age-restricted retirement community and the plaintiff-homeowner’s… Continue Reading
Motion for Summary Judgment Denied in Part and Granted in Part in Sons’ Suit Over the Management of their Deceased Father’s Real Estate Empire: Serota v Scimone
Posted in Aiding and Abetting, Breach of Fiduciary Duty, CPLR 3211, Declaratory Judgment, Industry: real estate, Justice Ramos, Charles E., Motion to Dismiss, New York, Unjust EnrichmentIn a January 10, 2013 decision by Justice Ramos, the court denied in part and granted in part the defendant Scimone’s motion to dismiss. The individual plaintiffs challenged the validity of a management agreement (“Agreement”) that related to various properties owned by their deceased father, Nathan Serota (“Serota”), entered into by Scimone and Serota. The… Continue Reading
Judicial-Proceedings Privilege Inapplicable in the Face of Allegations that Prior Litigation Was Commenced to Harrass and Disparage: Hadar v Pierce
Posted in Aiding and Abetting, Breach of Fiduciary Duty, Civil Conspiracy, CPLR 3211, Defamation, Failure to State a Claim, Industry: real estate, Judicial Proceedings Privilege, Justice Bransten, Eileen, Legal Malpractice, Motion to Dismiss, New York, Res Judicata, Tortious Interference with Business RelationsIn a January 4, 2013, decision by Justice Bransten, the court denied defendants’ motion to dismiss under CPLR 3211 [a] [7] plaintiff’s causes of action for defamation, legal malpractice, breach of fiduciary duty, malicious prosecution, civil conspiracy, and other business torts. Plaintiff-real estate developer sued his father and his father’s lawyers, alleging that they undertook… Continue Reading
Claims Not Barred by Collateral Estoppel and Res Judicata: Klein et al. v. Gutman et al.
Posted in Collateral Estoppel, Default, Industry: real estate, Justice Schmidt, David I., Kings, Res JudicataIn a December 7, 2012 decision by Justice Schmidt, the court denied defendants’ motion for leave to amend their complaint and to dismiss plaintiffs’ claims and plaintiffs’ cross-motion for summary judgment. This decision is the second of two complimentary decisions, the other issued in Gutman v A to Z Holding Corp., which was the subject… Continue Reading
Summary Judgment Granted where Fraud-Based Claims were Subject to Agreement’s Broad Release Provision: Kava Invs. LLC v 2170-2178 Broadway LLC
Posted in Fraud, Industry: real estate, Justice Kapnick, Barbara R., New York, Release, Summary JudgmentIn a January 22, 2013 decision by Justice Kapnick, the court granted the defendants’ motion for summary judgment dismissing the complaint in its entirety. The plaintiffs were minority owners of a real estate holding company (“Broadway Owner”) that owned a Manhattan hotel (“Hotel OTA”). The defendants, as the majority owners of Broadway Owner, agreed to… Continue Reading
Trial Court Cannot Vacate Its Own Order After Appellate Division Modified or Affirmed It: Gutman v A to Z Holding Corp.
Posted in Breach of Fiduciary Duty, Fiduciary Duty, Industry: real estate, Justice Schmidt, David I., KingsIn a December 7, 2012 decision by Justice Schmidt the court held that it did not have the inherent authority to vacate its own decision after that decision had been reviewed and affirmed or modified by the Appellate Division. The litigation was one of many between two different business partners. In 2002 the court issued… Continue Reading
Title Insurance Company’s Motion to Dismiss Real Estate Developer’s Indemnity Claim Dismissed: JBGR LLC v Chicago Title Ins. Co.
Posted in Agency, CPLR 3211, Documentary Evidence, Indemnification, Industry: insurance, Industry: real estate, Justice Schmidt, David I., Motion to Dismiss, SuffolkIn a January 17, 2013 decision by Justice Emerson, the court denied the defendant’s motion to dismiss. The plaintiffs were members of a real estate development entity that purchased a residential community in 2006 with plans for further development. The plaintiffs were subsequently found liable for their default under the promissory note and individual guarantees… Continue Reading
Motion to Dismiss Aggrieved LLC Partner’s Claims for Fraud and Breach of Fiduciary Duty Denied: C&B Enters. USA v Koegel
Posted in Breach of Fiduciary Duty, CPLR 3104, CPLR 3211, Derivative Actions, Fraud, Industry: real estate, Justice Demarest, Carolyn E., Kings, Limited Liability Companies, Statute of LimitationsIn a January 14, 2013 decision by Justice Demarest, the court denied in part and granted in part the third-party defendant Rosenberg’s motion to dismiss each of the causes of action asserted against him by the defendant/third-party plaintiff Koegel, who sued individually and derivatively on behalf of the plaintiff C&B. Koegel and Rosenberg formed C&B,… Continue Reading
Counsel Admonished for Using Litigation as a Negotiation Tactic: Toys R Us—Delaware, Inc. v 44-45 Broadway Realty Co., LLC
Posted in Breach of Contract, Contract Interpretation, CPLR 3211, Industry: real estate, Justice Ramos, Charles E., Motion to Dismiss, New YorkIn a January 2, 2013, decision by Justice Ramos, the court granted defendant’s motion to dismiss plaintiff’s complaint. In the midst of lease-renewal negotiations between the parties, plaintiff-tenant sued defendant-landlord to recover 12 years of its proportionate share of real-estate taxes assessed against defendant’s building, which plaintiff had paid under the parties’ lease. Plaintiff contended… Continue Reading
Unfortunate Result of Litigation Leads to a Finding of Malpractice: Board of Managers of Bridge Tower Place Condominium v Starr Assoc., LLP
Posted in Industry: legal, Industry: real estate, Justice Schweitzer, Melvin L., Legal Malpractice, New York, Summary JudgmentIn a December 12, 2012 decision by Justice Schweitzer, the court granted the plaintiff condominium board’s motion for summary judgment on its complaint which alleged that the Starr Associates, LLP and two of its attorneys committed legal malpractice when they represented the board in a lawsuit brought by one of the unit owners. In that… Continue Reading
Summary Judgment Denied in Construction Financing Arrangement: Markham Gardens L.P. v 511 9th LLC
Posted in Breach of Contract, Fraud, Industry: real estate, Justice DeStefano, Motion to Amend, Nassau, Summary Judgment, Time of the EssenceIn a September 10, 2012 decision by Justice DeStefano, the Court denied plaintiff’s motion for summary judgment and for leave to amend, and granted the cross-motion of one of the defendants for summary judgment, dismissing the complaint as against it. The case arose out of a 421-a Purchase Agreement (“421-a Agreement”) with Vista Developers Corporation… Continue Reading
Price Gouging and Other Defenses Rejected in Gas Station Contract Dispute: Atlantic Gas & Wash LLC v 3170 Atlantic Ave. Corp.
Posted in Breach of Contract, Conversion, CPLR 3211, Dispute Resolution Clause, General Business Law 349, Impossibility, Industry: Oil & Gas, Industry: real estate, Justice Schmidt, David I., Kings, Mediation, Price Gouging, Standing, Tortious Interference with Business Relations, UnconscionabilityIn a November 14, 2012 decision by Justice Schmidt, the Court granted defendants’ motion to dismiss the thirteen-count complaint against them, alleging that plaintiffs — operators of a gas station — were compelled to enter into unconscionable contracts that required them to purchase gasoline from defendants at excessive rates. Plaintiffs alleged a myriad of tort… Continue Reading
Ex-Wife’s Claim to House Subordinate to Bank’s Mortgage: Accredited Home Lenders, Inc. v Walker
Posted in Industry: real estate, Justice Whelan, Thomas, Mortgage Foreclosure, Mortgages, Subrogation, Suffolk, Summary JudgmentIn a November 30, 2012 decision by Justice Whelan the court determined that two mortgages had priority over a judgment in favor of the homeowner’s ex-wife. In May 2007 the homeowner obtained a loan from the plaintiff. The loan proceeds were used, in part, to repay two loans. The mortgage wasn’t recorded until February 2008. … Continue Reading
Release Executed in Favor of Employees by Former Employer Does Not Bar Claims Against Subsequent Employer: Atlantic Beach Realty Group, Inc. v Ceslow
Posted in CPLR 3211, Documentary Evidence, Fraud, Fraudulent Concealment, Fraudulent Inducement, Industry: real estate, Justice Pines, Emily, Release, SuffolkIn a November 5, 2012 decision by Justice Pines, the court denied in part and granted in part defendants’ motion to dismiss the complaint. Plaintiff-real estate agency sued its former brokers and their new employer, alleging that defendants wrongfully competed with and converted plaintiff’s business. Defendants moved to dismiss the complaint on, inter alia, the… Continue Reading
Claims for Legal Malpractice and Breach of Fiduciary Duty Barred by the Statute of Limitations: Elmakies v Sunshine
Posted in Breach of Fiduciary Duty, Industry: legal, Industry: real estate, Justice DeStefano, Legal Malpractice, Nassau, Statute of LimitationsIn a September 24, 2012 decision by Justice DeStefano, the court granted the defendants’ motion to dismiss the complaint, which included causes of action for legal malpractice and breach of fiduciary. The defendants, law firms and their named partners, were retained by the plaintiff with respect to investments in real and personal property that the… Continue Reading
RICO Claims Dismissed for Failure to Establish a Racketeering Enterprise: Daskal v Tyrnauer
Posted in Debtor-Creditor, Failure to State a Claim, Fraud, Industry: real estate, Justice Demarest, Carolyn E., Kings, RICOIn an October 22nd decision by Justice Demarest, the court granted the defendants’ motions to dismiss the complaint. Daskal brought the action individually and on behalf of three corporate entities, including Greene LLC, alleging that he was defrauded by the defendants in the diversion of Green LLC’s assets. Daskal formed Greene LLC as vehicle through… Continue Reading
“Best Efforts” Means Best Efforts, and Court refused to Void Contract for Lack of Measuring Criteria: Maestro West Chelsea SPE v Pradera Realty Inc.
Posted in Breach of Contract, Good faith and fair dealing, Industry: construction, Industry: real estate, Justice Bransten, Eileen, New York, Permanent Injunction, Preliminary Injunction, Specific Performance, WaiverIn an October 9, 2012 decision by Justice Bransten, the court denied the defendant’s motion to dismiss a breach of contract claim. The court rejected the defendant’s arguments that the contract was void for vagueness and violated the rule against perpetuities. First, the defendant argued that its contract with the plaintiff, pursuant to which it had agreed to sell… Continue Reading
In the Absence of Warranty of Title, Title Insurance Obligation Terminates Upon Conveyance: Washington Temple Church of God in Christ, Inc. v. Global Props. & Assoc., Inc.
Posted in Breach of Contract, Industry: real estate, Insurance Coverage, Justice Schmidt, David I., Kings, Negligence, Rescission, Summary Judgment, Title InsuranceIn an October 18, 2012 decision by Justice Schmidt, the Court granted the motion by Fourth-Party Defendant United General for summary judgment dismissing the Fourth–Party Complaint, concluding that United General did not have a duty to defend Third-Party Plaintiff Global Properties on title claims. The action arose out of a claim brought by Washington Temple… Continue Reading
Summary Judgment Granted on Various Claims Stemming from the Failed Joint Venture Purchase of a Radio Station: Wong v Moy
Posted in Breach of Contract, Fraud, Industry: entertainment, Industry: real estate, Joint Venture Dispute, Justice Kapnick, Barbara R., Misrepresentation, New York, Summary JudgmentIn an October 5th decision by Justice Kapnick, the court granted the defendants’ motion for partial summary judgment, and granted the plaintiff’s motion for summary judgment in part. The case arose from the defendant Moy’s purchase and subsequent management of a radio station through a joint venture, entered pursuant to a Shareholder Agreement, with the… Continue Reading
Failure to Cross-Move, and Law of the Case, Bar Subsequent Summary Judgment Motion: Akodes v Pyatetsky
Posted in CPLR 3212, Debtor-Creditor, Industry: real estate, Justice Demarest, Carolyn E., Kings, Summary JudgmentIn an October 3, 2012 decision by Justice Demarest, the court denied plaintiff’s motion for summary judgment finding that a prior decision denying defendants’ summary judgment motion was law of the case which barred the subsequent motion. The question at issue was whether the transfer of one of the defendant’s interest in real property to… Continue Reading