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Category Archives: Industry: real estate

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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

Property Owner’s Negligence and Malpractice Claims Against Site Plan Preparers Dismissed on Summary Judgment, are Time-Barred

Posted in Estoppel, Industry: construction, Industry: real estate, Justice Schmidt, David I., Kings, Malpractice, Misrepresentation, Negligence, Statute of Limitations, Summary Judgment, Uncategorized

In a January 24, 2014 decision by Justice Schmidt, the court granted in part defendants’ motion for summary judgment dismissing the complaint, which concerned the preparation and approval of a site plan for the development of a vacant property in Staten Island.  In September 2004, plaintiff Willis Ave. Development LLC purchased and closed on a property… Continue Reading

Creditor Entitled to Summary Judgment in Lieu of Complaint where Agreement Contains Clear Method for Calculating Accrued Interest

Posted in Breach of Promissory Note, Debtor-Creditor, Estoppel, Industry: real estate, Justice Bransten, Eileen, New York, Notice, Promissory Note, Summary Judgment in lieu of Complaint, Uncategorized

In a January 3, 2014 decision by Justice Bransten, the court granted the plaintiff’s motion for summary judgment in lieu of complaint pursuant to CPLR 3213, seeking entry of a judgment against the defendant for the principal and accrued interest due under a loan. In October 2007, defendant entered into an agreement with several nonparties… Continue Reading

Brooklyn Landlord’s Counterclaims against Deli-Operator Frank Brunckhorst Co., LLC for Early Termination of Lease Survive Summary Judgment

Posted in Breach of Contract, CPLR 3211, Industry: real estate, Justice Schmidt, David I., Kings

In a July 3, 2013 decision by Justice Schmidt, the court denied in part and granted in part the plaintiff’s (“Brunckhorst”) motion for summary judgment seeking dismissal of the defendant’s (“JPKJ”) counterclaims. The suit related to a 10-year lease (the “Lease”) entered into by the parties whereby Brunckhorst leased certain portions (the “Premises”) of a… Continue Reading

Dissenting Opinion Not a Change in the Law for Purposes of Leave to Renew: Philips Intl. Invests., LLC v Pektor

Posted in CPLR 2221, Industry: real estate, Justice Bransten, Eileen, Motion to Renew, New York, Unjust Enrichment

In a June 7, 2013, decision by Justice Bransten, the court denied defendants’ motion for leave to renew their prior motion to dismiss plaintiff’s unjust-enrichment claim based on a dissenting opinion from a Court of Appeals decision issued after the prior motion was denied.  Defendants argued that the dissenting judges’  disagreement with the majority over… Continue Reading

Claims Involving an Alleged Improper Sale of a Florida Property by a Florida Company Subject to Dissolution in Florida Must Be Litigated in Florida: Picarella v HMA Props., LLC

Posted in CPLR 3211, CPLR 327, Forum non Conveniens, Industry: real estate, Justice Emerson, Elizabeth, Limited Liability Companies, Motion to Dismiss, Suffolk

In a June 17, 2013, decision by Justice Emerson, the court granted defendants’ motion to dismiss the complaint on grounds of inconvenient forum.  Plaintiff, a 35% member of defendant-real estate holding LLC, commenced an action against the company and its three other members for an alleged improper sale of real property.  The property had been… Continue Reading

Expiration of Preliminary Injunction Not a “Final Determination” for Purposes of CPLR 6312 Undertaking Provision: Greens at Half Hollow Home Owners v Greens at Half Hollow, LLC

Posted in CPLR 6312, CPLR 6315, Industry: municipal, Industry: real estate, Justice Pines, Emily, Mandatory Injunction, Preliminary Injunction, Suffolk

In a June 11, 2013, decision by Justice Pines, the court denied plaintiff’s motion to fix damages allegedly sustained as a result of a previously-granted preliminary mandatory injunction.  In 2011, Plaintiff-home owner’s association sued the owner/operator of a sewage-treatment plant, the Town of Huntington, and the County of Suffolk seeking, inter alia, a declaration that… Continue Reading

Mortgagee Does Not Have Duty of Care to Ascertain Validity of Documentation Presented by One Claiming Authority to Act on Behalf of Mortgagor: Mockin v Astoria Fed. Sav. & Loan

Posted in Apparent Authority, Assignment, CPLR 1018, CPLR 3211, Default, Industry: real estate, Justice Schmidt, David I., Kings, Motion to Dismiss

In a June 19, 2013 decision by Justice Schmidt, the court granted the defendant’s motion to dismiss the complaint, and denied the plaintiffs’ motion for a default judgment. Plaintiffs commenced the action seeking title to a mixed-used property owned by the plaintiff 513 Properties, free and clear of a mortgage on the property that was… Continue Reading

Plaintiff’s Tortious Interference Claim Deemed “Balderdash” and Its Motion for Leave to Amend a “Dilatory Litigation Tactic”: 501 Fifth Ave. Co., LLC v Yoga Sutra, LLC

Posted in Breach of Contract, CPLR 3025, CPLR 3212, Fraudulent Conveyance, Fraudulent Transfer, Industry: real estate, Justice Kornreich, Shirley Werner, Motion for Leave to Amend, New York, Summary Judgment

In a June 6, 2013, decision by Justice Kornreich, the court granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff’s motion for leave to amend.  Plaintiff-landlord sued to recover rent on a commercial lease in connection with a yoga studio, alleging tortious interference with respect to the subject lease against defendants, the… Continue Reading

Statute of Frauds is no Bar to Enforcement of Agreement to Arbitrate in Online Auction: Matter of ADHY Inv. Prop., LLC v Garrison Lifestyle

Posted in Breach of Contract, Industry: real estate, Justice Kornreich, Shirley Werner, Motion to Stay Arbitration, New York, Online Auction, Statute of Frauds

In a June 6, 2013 decision by Justice Shirley Werner Kornreich, the Court dismissed the petition of ADHY Investment Properties, LLC (“ADHY”) to stay arbitration, and ordered the parties to arbitration. ADHY won an  online auction of real property, but then later refused to close.  Respondent FSA served a demand for arbitration which, in turn,… Continue Reading

Educational Non-Profit Lacks Standing to sue Columbia University for Alleged Breach of Charitable Trust: Italic Inst. of AM., Inc. v Columbia Univ.

Posted in Breach of Contract, Charitable Trust, CPLR 3211, EPTL 8-1.4, Industry: real estate, Justice Friedman, Motion to Dismiss, New York, Standing

In a June 14, 2013 decision by Justice Friedman, the court granted Columbia University’s motion to dismiss the complaint. The Plaintiff (“ITC”), which identified itself as an educational non-profit, sued Columbia for breach of a charitable trust. The trust was established to provide Columbia with a building, “La Casa Italiana”, which was constructed on land… Continue Reading

Newly Posited Arguments and Inadmissible Evidence Not Enough to Warrant Reargument or Renewal: North Country Dev., LLC v Fairway Rock, LLC

Posted in Industry: real estate, Justice Pines, Emily, Motion to Reargue, Motion to Renew, Real Property Actions and Proceedings Law, Suffolk

In a May 30, 2013, decision by Justice Whelan, the court denied defendant’s motion for leave to reargue and renew.  Plaintiff-mortgagee commenced a foreclosure action against defendant-mortgagor in connection with a commercial mortgage loan.  Co-defendant-bank claimed to be a “sole subsequent encumbrancer” under a later consolidated mortgage and, without raising the issue of priority, moved… Continue Reading

Release In Confirmed Bankruptcy Plan Precludes Claims Against Debtors’ Principals: Princeton Bedford LLC and Bedford JV LLC v Backer

Posted in Bankruptcy, Collateral Estoppel, Industry: real estate, Justice Ramos, Charles E., Motion to Dismiss, New York, Release, Res Judicata

In an April 24, 2013 decision by Justice Ramos, the court dismissed plaintiffs’ claims as barred by res judicata and a release contained in a confirmed bankruptcy plan.  The litigation arose from the proposed sale of two commercial parcels of real estate located in Brooklyn, New York, both of which were owned by entities which… Continue Reading

Court Awards Summary Judgment and Consolidates Mortgages in Foreclosure Action: People’s United Bank v Whitford Dev., Inc.

Posted in Declaratory Judgment, Deficiency Judgment, Industry: real estate, Justice Whelan, Thomas, Mortgage Foreclosure, Suffolk

In a May 13, 2013 decision by Justice Whelan, the court granted the plaintiff’s (“People’s”) motion for summary judgment and declaratory relief.  People’s commenced the action to foreclose two mortgages given by Witford that encumbered land in Riverhead, and which were subject to a broad and unconditional written guaranty that was executed by the individual… Continue Reading

Court Dismisses Claim for Abuse of Process, Allows Claim for Legal Malpractice in Action arising from Mortgage Foreclosure: Ferreira v Citiwide Real Estate & Mgt. Co.

Posted in Attorneys' Fees, Industry: legal, Industry: real estate, Justice Kitzes, Orin R., Legal Malpractice, Lis Pendens, Queens, Summary Judgment

In a May 8, 2013 decision by Justice Kitzes, the court granted the defendant Deutsche Bank’s motion for summary judgment dismissing the complaint, denied defendant Solda’s motion for summary judgment, and cancelled a notice of pendency against the East Elmhurst property (the “Property”) at issue, which was owned by Ferria. Deutsche Bank was previously awarded… Continue Reading

Letter-Agreement Acknowledging Debt Sufficient to Defeat Motion to Dismiss on Statute of Limitations Grounds Despite Ambiguities Regarding Party’s Intentions: Fernandez v Valeri

Posted in Commercial Paper, CPLR 3211, Holder In Due Course, Industry: construction, Industry: real estate, Justice Pines, Emily, Mortgages, Motion to Dismiss, Promissory Note, Standing, Statute of Limitations, Suffolk

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

Motion 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 Enrichment

In 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 Judgment

In 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