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NY Commercial Case Compendium A Searchable Database of Court Decisions Issued by New York’s Commercial Division

Category Archives: Industry: real estate

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Partners Bound by Ownership Representations in Partnership Tax Returns

Posted in CPLR 3211, Industry: real estate, Justice Demarest, Carolyn E., Kings, Motion to Dismiss, Partnership

In a June 9, 2014, Kings County Commercial Division decision by Justice Demarest, the court denied defendant’s motion to dismiss plaintiff’s declaratory judgment action.  Plaintiff, a former 50% owner in a real estate partnership, commenced the action against his co-partner for selling the partnership’s properties without his consent.  Defendant moved to dismiss, arguing that plaintiff… Continue Reading

Motion to Change Venue Denied in Action Seeking Judicial Dissolution as BCL § 1112 is Controlling

Posted in BCL 1104-a, Dissolution, Industry: real estate, Justice Demarest, Carolyn E., Kings

In a July 21, 2014 Commercial Division decision by Justice Demarest, the court denied the Defendants’ motion to change venue from Kings County to Nassau County. The plaintiffs were minority owners of a domestic real estate holding company (“Company”), which had sold a parcel of real property located in Brooklyn (“Property”) that was secured by… Continue Reading

Condo Board Lacks Capacity to bring Construction Defect Action for Failure to Follow Bylaws

Posted in CPLR 3211, Industry: real estate, Justice Demarest, Carolyn E., Kings, Motion to Dismiss

In a July 2, 2014 Commercial Division decision by Justice Demarest, the court granted the defendant’s motion to dismiss the complaint. The plaintiff board of managers of a Brooklyn condominium, commenced the action alleging significant construction defects against the condo’s sponsor. Among the arguments raised in the defendant’s motion was that the plaintiff lacked capacity… Continue Reading

Prior Action Dismissed For Failure To Appear At Motion Return Date Bars Subsequent Action Based on Res Judicata

Posted in CPLR 3211, Industry: real estate, Justice Demarest, Carolyn E., Kings, Motion to Dismiss, Res Judicata

In a July 9, 2014 Commercial Division decision by Justice Demarest, the court dismissed plaintiff’s claims based on the dismissal of a prior action brought by the plaintiff seeking similar relief, because the plaintiff failed to appear at the return date on motions in that action.  The litigation arose from a purportedly improperly placed mortgage… Continue Reading

Court Allows County Water Authority to Proceed on Theory of “Market Share Liability” in Products Case

Posted in CPLR 3211, Failure to State a Claim, Industry: manufacturing, Industry: real estate, Justice Pines, Emily, Motion to Dismiss, Negligence, Product Liability, Suffolk

In a June 16, 2014, Suffolk County Commercial Division decision by Justice Pines, the court denied defendants’ motion to dismiss plaintiff’s complaint for failure to state a cause of action. Plaintiff-county water authority brought a products-liability action against the defendant-manufacturers of a chemical used primarily in dry-cleaning machines, alleging groundwater contamination caused by the seepage… Continue Reading

Real Estate Investor’s Claims Time-Barred, Was Aware for Over Six Years of Lack of Development and Pre-Sales

Posted in Breach of Contract, CPLR 302, Fraud, Industry: real estate, Industry: telecommunications, Justice Demarest, Carolyn E., Kings, Motion to Dismiss, Personal Jurisdiction, Statute of Limitations, Unjust Enrichment

In a June 12, 2014 Commercial Division decision by Justice Demarest, the court granted the defendant LLCs’ motion to dismiss.  Plaintiff alleged he was approached by an individual defendant, a director and member of the two defendant LLCs, to invest in real estate in the Republic of Georgia, but that the real state was never… Continue Reading

Arbitration Provision in Operating Agreement Does Not Apply to Dispute Over Violation of Separate Settlement Agreement

Posted in Arbitration, Industry: real estate, Justice Demarest, Carolyn E., New York

In a June 12, 2014 Commercial Division decision by Justice Demarest the court denied a motion to stay an action in favor of arbitration.  The parties jointly owned real property, through limited liability companies.  The current litigation is the second between the parties.  The prior action ended with a Settlement Agreement which required the sale… Continue Reading

Replacement Buyers of Distressed Property Unable to Demonstrate Good Faith Purchase for Value to Defeat Lender’s Action to Recover Loan

Posted in Breach of Contract, CPLR 3211, Failure to State a Claim, Fraud, Industry: real estate, Justice Demarest, Carolyn E., Kings, Motion to Dismiss, Tortious Interference with Business Relations

In a June 3, 2014, Kings County Commercial Division decision by Justice Demarest, the court denied defendant-replacement buyers’ motion to dismiss plaintiff-lender’s action to recover on a loan made in connection with the renovation and sale of a multi-family apartment building.  The court denied the subsequent buyers’ motion, finding that they failed to demonstrate that… Continue Reading

Contractual “Best-Efforts” Obligation Enforceable in Absence of Contractual Standards Where External Circumstances Provide Meaning to Phrase

Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 3211, Documentary Evidence, Failure to State a Claim, Industry: real estate, Justice Demarest, Carolyn E., Kings, Release

In a May 13, 2014, Kings County Commercial Division decision by Justice Demarest, the court granted in part and denied in part defendant-sponsor’s motion to dismiss plaintiff-condominium board’s action for breach of contract, fraud, and fraudulent conveyance under New York’s Debit and Creditor Law (“DCL”). Factual Background Defendant purchased a Brooklyn industrial building with plans… Continue Reading

Contract Not an Unenforceable Agreement to Agree Despite Certain Terms Being Left for Future Negotiation

Posted in Breach of Contract, Industry: real estate, Justice Ramos, Charles E., New York, Summary Judgment

In a May 12, 2014 Commercial Division decision by Justice Ramos, the court denied the defendant’s motion for summary judgment which sought dismissal of the lone remaining cause of action in the case, for breach of contract. The contract at issue was a Resignation Agreement allegedly entered into by the plaintiff, a high-ranking senior real… Continue Reading

Release Provision in Separation Agreement Does Not Insulate Directors from Claims Concerning a Related LLC with Identical Board

Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 3211, Documentary Evidence, Failure to State a Claim, Industry: real estate, Justice Demarest, Carolyn E., Kings, Release

In an February 24, 2014, Kings County Commercial Division decision by Justice Demarest, the court denied defendant-majority owners’ motion to dismiss plaintiff-minority owner’s action for fiduciary breach and self-dealing in connection with the nominal defendant, a real estate holding LLC.  Defendants’ moved on the basis of a release provision contained in plaintiff’s separation agreement from… Continue Reading

Commercial Tenant Precluded from Maintaining Action Against Landlord and Yellowstone Injunction Denied, Since Tenant Was Foreign Corporation Not Authorized to do Business in New York

Posted in Foreign Corporation, Industry: real estate, Justice Demarest, Carolyn E., Kings, Standing, Yellowstone Injunctions

In an April 21, 2014 decision by Justice Demarest, the Commercial Division considered a motion for a Yellowstone injunction by plaintiff MKC-S, Inc., a commercial tenant and sub-landlord.  Defendant landlord opposed the motion by arguing that MKC-S, a Delaware corporation, was not authorized to do business in New York and therefore precluded, under BCL §… Continue Reading

Motion to Restore Denied, Despite Reasonable Excuse Being Shown, Where Plaintiff Failed to Demonstrate a Meritorious Cause of Action

Posted in Failure to State a Claim, Industry: real estate, Justice Demarest, Carolyn E., Kings

In an April 7, 2014 Commercial Division decision by Justice Demarest, the court denied the plaintiff’s motion to restore the action to the calendar pursuant to CPLR 3404. The action was brought to enforce a contract for the sale of commercial real estate by the defendant to a non-party purchaser, who allegedly assigned his right… Continue Reading

Court Rejects Unclean Hands, Standing and Champerty Defenses in Commercial Mortgage Foreclosure Action

Posted in Default, Industry: real estate, Justice Demarest, Carolyn E., Kings, Mortgage Foreclosure, Summary Judgment

In an April 22, 2014 decision by Justice Demarest, the Commercial Division considered cross-motions for summary judgment and defendants’ motion for leave to amend the answer in an action to foreclose a mortgage on commercial real property.  Defendants raised a number of affirmative defenses, each considered and ultimately rejected by Justice Demarest.  The court granted… Continue Reading

Commercial lender in mortgage foreclosure denied summary judgment since issues of fact exist concerning whether assurances and conduct of loan officers extended and modified payment terms

Posted in Estoppel, Industry: real estate, Justice Ramos, Charles E., Mechanic's Lien, Mortgage Foreclosure, New York, Summary Judgment

In a March 21, 2014 decision by Justice Ramos, the Commercial Division considered the defense of estoppel raised against a lender in an action to foreclose two mortgage loans securing commercial property, where the borrower claimed the lender should be estopped from proceeding with foreclosure due to the specific assurances and conduct of its loan… Continue Reading

Collateral Estoppel Bars Later Claim for Tortious Interfence of real Estate Contract of Sale: Revital Realty Group, LLC v Kalmon Dolgin Affiliates, Inc.

Posted in Breach of Contract, Collateral Estoppel, Conversion, CPLR 3211, Industry: real estate, Justice Demarest, Carolyn E., Kings, Tortious Interference with Business Relations, Unjust Enrichment

In a November 14, 2013 Commercial Division decision by Justice Demarest, the Court  granted defendants’ motion to dismiss the action in its entirety based on collateral estoppel.  The complaint alleged that defendants tortuously interfered with a contract for the sale of real property to plaintiff from a third party seller. Plaintiff alleged that performance of… Continue Reading

Court Finds Irony in Mortgagee’s Motion to Set Aside Foreclosure Sale after Failing to Extend Notice of Pendency

Posted in Foreclosure, Industry: real estate, Justice Karalunas, Deborah H., Notice Of Pendency, Onondaga

In an February 24, 2014, Onondaga County Commercial Division decision by Justice Karalunas, the court denied plaintiff-mortgagee’s motion to set aside a foreclosure sale of a 15-story tower in Syracuse.  After failing to extend its notice of pendency on the subject property, and after a good-faith purchaser acquired the property at the foreclosure sale, plaintiff… Continue Reading

Court Denies Motion for Summary Judgment in Lieu of Complaint Based on Breach of Fiduciary Duty Defense Raised in Opposition

Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 3213, CPLR 4519, Dead Man's Statute, Industry: legal, Industry: real estate, Justice Demarest, Carolyn E., Kings, Legal Malpractice, Promissory Note, Statute of Limitations, Summary Judgment in lieu of Complaint

In an October 29, 2014, Kings County Commercial Division decision by Justice Demarest, the court denied plaintiff’s motion for summary judgment in lieu of complaint based on an alleged default on a mortgage note.  Plaintiff-attorney made three loans to defendant-client in connection with the purchase and financing of a building.  The court denied plaintiff’s motion… Continue Reading

Lessons in Discovery—from Directions Not To Answer in Depositions to Document Production: Freidman v Fayenson

Posted in Attorney-Client Privilege, Depositions, Discovery, Industry: real estate, Justice Bransten, Eileen, Motion to Compel Discovery, New York, Sanctions

In a December 4, 2013 decision by Justice Bransten, the Commercial Division was faced with myriad discovery disputes, ranging from the refusal to produce an insurance policy to directions not to answer questions posed at a deposition.  In a 29-page decision, Justice Bransten carefully navigated and decided each of the discovery issues presented, giving clear… Continue Reading

Breach of Contract Defense Defeats Motion for Summary Judgment in Lieu of Complaint Where Note Was Inextricably Intertwined with Underlying Contract of Sale and Related Leases

Posted in Breach of Contract, Co-operative, Collateral Estoppel, CPLR 3213, Industry: real estate, Justice Demarest, Carolyn E., Kings, Promissory Note, Res Judicata, Statute of Limitations, Summary Judgment in lieu of Complaint

In a January 21, 2014, Kings County Commercial Division decision by Justice Demarest, the court denied plaintiff’s motion for summary judgment in lieu of complaint under CPLR § 3213 based on an alleged default on a promissory note given in connection with the sale of a cooperative unit.  Because the promissory note was “inextricably intertwined”… Continue Reading

Party Cannot Seek Affirmative Relief in Opposition to Summary Judgment without Serving a Notice of Cross-Motion for Such Relief

Posted in CPLR 3211, CPLR 3212, Foreclosure, Industry: real estate, Justice Emerson, Elizabeth, Mortgages, Motion to Dismiss, Suffolk, Summary Judgment

In a January 8, 2014, decision by Justice Emerson, the court granted plaintiff-mortgagee’s motion for summary judgment in an action to foreclose a commercial mortgage, finding that plaintiff had produced the requisite mortgage, unpaid note and guaranties, and evidence of default necessary to establish its prima facie entitlement to judgment as a matter of law. … Continue Reading

Mortgage’s Commercial Status Unaffected by Presence of Rabbi’s Residence on Mortgaged Property

Posted in Industry: real estate, Justice Demarest, Carolyn E., Kings, Motion to Dismiss, Summary Judgment

In a January 3, 2014 Commercial Division decision by Justice Demarest, the court granted the plaintiff’s motion for summary judgment and its motion for an order appointing a referee to compute, and denied the defendant’s motion to dismiss. The plaintiff brought the action to foreclose on a commercial mortgage under which it asserted the defendant,… Continue Reading

Board Resolution to Discontinue Suit Brought in Name of Corporation by 50% Shareholder Upheld, Remedy for Shareholder is Derivative Action Instead: Machaneinu, Inc. v Luria

Posted in Derivative Actions, Industry: real estate, Justice Demarest, Carolyn E., Kings, Motion to Dismiss

In a December 20, 2013 decision by Justice Demarest, the court granted a 50% shareholder’s  motion to dismiss an action brought by the plaintiff not-for profit corporation on the ground that the President of the corporation who originally authorized the suit was later directed by the Board of Directors to discontinue the suit.  Although the… Continue Reading

Anticipatory Breach of Real Estate Contract Leads to Loss of Down Payment and Attorneys’ Fees Award: Princes Point L.L.C. v AKRF Eng’g, P.C.

Posted in Anticipatory Repudiation, Attorneys' Fees, Breach of Contract, Industry: real estate, Justice Ramos, Charles E., New York, Summary Judgment

In a January 31, 2014 decision by Justice Ramos considering a breach of real estate contract,  the court granted seller defendants’ motion for summary judgment on their counterclaims, dismissing the complaint, and allowing defendant Allied to retain the down payment and certain compaction payments.  In addition, defendants were awarded attorneys’ fees based upon a “prevailing… Continue Reading