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Notable Decisions and Representative Matters

NOTABLE DECISIONS

ERA Capital L.P. v. Regions Bank, 216 A.D.3d 592, 190 N.Y.S.3d 325 (1st Dept. 2023):  Firm client-family office made a loan secured by a letter of credit (LOC), that was wrongfully dishonored upon borrower’s payment default.  The Firm brought a novel negligent misrepresentation claim against client’s commercial bank.  The Appellate Court refused to dismiss the claim holding that trial issues existed as to whether Regions Bank acted negligently in recommending an unsuitable LOC issuer.

69 Pinehurst LLC v. Sixty Nine Pinehurst Avenue Associates LLC, 211 A.D.3d 518, 181 N.Y.S.3d 523 (1st Dept. 2022):  Firm client sold Manhattan apartment building, and post-closing purchaser applied for a property tax refund for pre-closing tax years.  The Firm defended a lawsuit by purchaser that claimed the City wrongfully paid the refund to seller because the Bill of Sale assigned to purchaser seller’s rights and claims with respect to the premises.  The Appellate Court adopted the Firms’ argument in dismissing the action that, when read in harmony with relevant statutory law and the provisions in the contract of sale requiring apportionment of rents, the Bill of Sale did not convey the tax refund because it was a personal right of seller.

Cohen v Inwindow Outdoor, LLC, 2020 N.Y. Misc. LEXIS 680, *1, 2020 NY Slip Op 30435 (Comm. Div. N.Y. Co. 2020):  defending  outdoor display company, granting pre-answer motion to dismiss minority member’s claim for oppression and usurption of corporate opportunities.

Aspire Federal Credit Union v. Placida N. Robinson, (In re Robinson), 595 B.R. 148 (Bankruptcy Court 2019):  Taxi medallion operator defaulted in repaying loan to Firm client and filed for protection under the bankruptcy code.  The Firm brought adversary proceeding in bankruptcy court to deny discharge and dismiss bankruptcy case based on operator’s false filings and violations of discovery obligations and related Court orders.  Court granted Firm’s motion for judgment and dismissed bankruptcy case allowing firm client to continue enforcement of loan.

47-53 Chrystie Holdings LLC v Thuan Tam Realty Corp., 167 A.D.3d 405, 90 N.Y.S.3d 152 (1st Dept. 2018): obtained appellate decision reinstating claim on over $20 million contract to purchase investment property in lower Manhattan.  The Court adopted Firm’s argument of “fraudulently induced unilateral mistake” in holding purchaser alleged a viable claim that sellers fraudulently induced purchaser to cancel purchase contract during due diligence.

Barklee 94 LLC v. Oliver, Index No. 100346/2013 (Supr. Ct. N.Y. Co. 2017), aff’d, 167 A.D.3d 415, 88 N.Y.S.3d 25 (1st Dept. 2018): defending owner that performed complete gut renovation of Upper East Side townhouse, granting motion for summary judgment dismissing neighbor’s remaining claims for violation of easement in party wall and construction defects in lengthy decision finding exhaustive fact record submitted by Frydman LLC supported judgment as a matter of law with no material fact issues requiring trial.

In the Matter of Mark Alexander, on his own behalf and derivatively on behalf of Glenmark Partners, LLC v. Glen Vetromile, (American Arbitration Association 2016): after two week hearing in “corporate divorce” arbitration, three member panel issued unanimous 21 page Award finding member in real estate development company usurped lucrative project to develop a large mixed use property in Westchester County, New York.  The Award granted varied relief to Firm client, including $400,000 punitive damage award, constructive trust over development project and appointment of Special Master to conduct accounting of member’s financial dealings.

Barklee 94 LLC v. Oliver, 124 A.D.3d 459, 2 N.Y.S.3d 425 (1st Dept. 2015): defending owner that performed complete gut renovation of Upper East Side townhouse, reversing trial court decision dismissing bulk of neighbor’s claims for property damage, violation of easement in party wall and related claims arising from construction.  Appellate Court made various rulings about claims concerning use of party walls and application of Building Code.

SPRE Realty, Ltd. v. Dienst, 119 A.D.3d 93, 986 N.Y.S.2d 92 (1st Dept. 2014):  representing real estate broker seeking commission for $11.5 million residential sale against buyer that cut broker out and secretly closed transaction.  In precedent setting decision Appellate Court sustained complaint and, recognizing lack of a unified judicial standard for when brokers earn real estate commissions, clarified “procuring cause” rule in Manhattan and Bronx.

Yudell v. Gilbert, 99 A.D.3d 108, 949 N.Y.S.2d 380 (1st Dept. 2012):  defended joint venture partner in shopping center in Nassau County.  Appellate Court upheld dismissal of co-venturer’s claims of mismanagement and breach of fiduciary duty in operation and leasing of center.  In precedent setting decision Appellate Court adopted Delaware’s “Tooley Test” to differentiate direct and derivative claims in New York, greatly enhancing predictability in shareholder and partner disputes.

Real Estate Litigation

REPRESENTATIVE MATTERS

• Represented owner of office tower in claim of wrongful foreclosure of $60 million mortgage loan held in CMBS trust
• Represented international automated garage manufacturer in claim of malfunctioning self-operating garage in upscale Upper East Side condominium
• Represented tenant in common owner of trophy residential property in Fort Greene, Brooklyn in action for partition and sale by public auction
• Represented partner in failed High Line area condominium project for fraud and breach of fiduciary against partners, corporate counsel and general contractor
• Represented restaurant owner in defense of landlord’s enforcement of Good Guy Guaranty of commercial lease
• Represented commercial mortgage broker in claim for commission for loans closed by former client with designated lender
• Represented commercial tenant in Yellowstone Injunction action to stay landlord’s attempted termination of lease for alleged nonpayment violations
• Represented real estate brokers in various commission claims against contracting parties and co-brokers
• Represented uninsured cooperative unit owner in water leak property damage claims by board, adjacent units and insurance carriers
• Represented cooperative board as special litigation counsel in claim that unit owner performed unauthorized renovations
• Represented SoHo loft owner that performed gut rehabilitation against neighbors’ and board’s construction defect claims
• Represented owner of renovated townhouse in dispute with neighbor about alleged construction defects
• Represented owner of renovated townhouse in dispute with former contractor
• Represented various purchasers and sellers in disputes over breach and enforcement of contracts for sale of commercial properties
• Represented owners, developers, contractors and design professionals in various contract disputes
• Represented debtor-general contractor as special litigation counsel in bankruptcy proceeding to collect on completed construction contract
• Represented residential landlord in coverage dispute with liability carrier over coverage for slip and fall on stairs of building
• Represented general contractor in coverage dispute with liability carrier for subcontractor’s fall off sidewalk shed