Sometimes, disputes on leasing and real estate transactions cannot be resolved out of court. Representing Banco do Brasil, Peter D. Aufrichtig obtained summary judgment dismissing the entire action to enforce a lease terminated by Banco do Brasil ab initio, in the United States District Court for the District of New Jersey. Peter also persuaded the court to direct the losing side to pay the firm's attorney fees in Peter's successful motion to dismiss the other side's case.
Real Estate Transactions - Transfer of Condominium Apartment Based on Ancient Contract
Transfer of Multi-Million Dollar Condominium Apartment on a High Floor of Trump Tower Apartment Based on 26 year Old Contract
Clients facing complex legal problems come to McCarthy Fingar to help solve the problem. Here, Peter D. Aufrichtig worked with a client to convey a multi-million dollar apartment on a high floor in the Trump Tower condominium at 5th Avenue in Manhattan, based on a 26 year old contract. However, the contract neither identified the property with any particularity nor described any specific consideration for the conveyance. The apartment had been vacant and in legal limbo for more than 25 years, until Peter's creative lawyering helped design and navigate a complex path to a successful conveyance with good, insurable title insurance. Just another example of McCarthy Fingar's real estate lawyers developing creative solutions to vexing legal problems.
Commercial Finance – Real Estate Transactions - $21 Million Construction Loan for Development of Mixed Use Shopping Center
McCarthy Fingar’s Commercial Finance lawyers often represent our lending clients in commercial Real Estate Transactions. Here, Joseph P. Harrington represented the lender on a $21 million dollar construction loan for the development of a mixed use shopping center with a national supermarket as the anchor tenant under a long term lease.
Sellmon v. Cotter (Sup. Ct., Westchester Co., Index No. 11444/11)
McCarthy Fingar's Business Litigation and Real Estate Transactions lawyers sometimes represent clients in lease disputes. Here, Robert H. Rosh successfully moved to dismiss the complaint in which the plaintiff-landlord sued our client to recover damages under a guaranty of rental payments for a one year lease entered into by our client’s son as tenant. The issue in this case was whether the guarantee signed by our client was limited to her son’s one year lease, or extended to a renewal lease that our client’s son had entered into after the expiration of the one year lease, and allegedly defaulted under. In dismissing the complaint on Rob’s motion, the court held that, under New York law, a guarantor is not bound beyond the express terms of his guarantee. And, because the guarantee did not expressly states that the parties intended the guarantee to continue during periods of renewal, our client’s liability under the guarantee did not extend to the renewal lease.
Negotiation & Documentation of Work-Out/Restructure of Defaulted Mortgage Loan for Banking Client
In addition to closing commercial loan transactions for our banking clients, our Commercial Finance & Real Estate Transactions lawyers sometimes assist clients on the work-out and/or restructuring of a problem loan. On behalf of one of the firm’s banking clients, Joe Harrington successfully negotiated and documented the restructure of a defaulted loan secured by a first mortgage on an office building, thereby enabling the client to convert the defaulted loan into a performing asset.
Wiernik v. Kurth (Sup. Ct., Westchester Co., Index No. 6216/07) (2010)
Robert H. Rosh successfully prosecuted this action by obtaining for our clients a favorable settlement under which the defendants confessed judgment. The dispute arose out of a construction project involving the construction of an addition to our clients’ residence. The construction was, as alleged in the complaint, replete with structural deficiencies, and the defendant-contractor was not a licensed home improvement contractor.
Some disputes simply cannot be resolved out of court. Paul S. Aufrichtig and Dina M. Aversano successfully were awarded injunctive relief for their client, the buyer of a cooperative apartment in New York City, by way of their motion brought by Order to Show Cause before the Supreme Court, New York County. The Court granted the buyer’s requested relief in the form of a court appointed receiver to facilitate the closing of a cooperative apartment that was consistently thwarted by the seller’s actions. In a decision published in the New York Law Journal, Judge Emily Jane Goodman appointed a receiver and empowered the receiver to take any actions that would effectuate transfer of the cooperative apartment.
If a dispute as to a real estate transaction cannot be settled, lawyers need skill and experience to win a case in court. In this matter, Robert H. Rosh successfully defended our client at both the lower court and appellate levels, in an action brought by a tenant to enforce a purported option to purchase our client’s real property. Rob moved for, and obtained, an order dismissing the tenant’s complaint. In support of its dismissal, the court held that the draft option agreement between the parties did not identify the property to be conveyed with sufficient particularity to satisfy New York’s Statute of Frauds, General Obligations Law §5-703(2), and was therefore unenforceable.
Following our client’s victory, the tenant refused to vacate the premises and Rob successfully pursued on our client’s behalf a proceeding that resulted in the eviction of the tenant from the premises.
Developers sometimes come to McCarthy Fingar and our Business Litigation group to deal with disputes with municipalities on the terms and conditions of a development deal. Here, Robert M. Redis and the firm successfully sued the Planning Board of the Village of North Hills and its building department over the failure of the municipality to release staged infra structure subdivision and bonds, as called for in the enabling municipal approvals. The development was a high end project in a wealthy Long Island community. The municipality had refused to release the bonds until other matters unrelated to the bonds were resolved. Those other issues involved substantial amounts of money and would have harmed the client if the bonds were not released. After the municipality wrongfully refused to release the bonds. Bob commenced a CPLR Article 78 Proceeding to have the bonds released and persuaded the trial court to make an order mandating the release of the bonds. The municipality immediately appealed the order, holding up the release of the bonds, but the Appellate Divsion, Second Department unanimously upheld the lower court decision, and the bonds were released.
Our lawyers defend clients on unwarranted lawsuits for enforcement of alleged contracts. Here, Robert H. Rosh successfully defended an action that was brought against his client for specific performance of a contract to sell real property. Rob moved for and was awarded summary judgment dismissing the action. On appeal, the lower court’s decision was affirmed, finding that the parties never had a meeting of the minds, and that the documents which had been relied upon by the plaintiff in support of his claim had omitted essential terms of a contract; and, thus, the claim was barred under the statute of frauds. The appellate court also found that the actions taken by the plaintiff were not unequivocally referable to a contract of sale so as to constitute part performance sufficient to defeat the statute of frauds, and were merely steps taken in contemplation of a future agreement.
Our lawyers represent companies in disputes on sophisticated business transactions, sometimes involving real estate. Here, Robert M. Redis, on appeal, convinced the the Appellate Division, First Department, to reverse a lower court's denial of a motion for summary judgment. The outcome was that Bob's client obtained stock warrants as part of the rent on a large commercial property located in Connecticut
This matter involved a commercial net leasing arrangement between our client -lessor (Middlebury) and defendant-lessee (General Datacomm) (GDC). The lease was subsequently amended to provide GDC a rent reduction in return for its issuance of warrants to purchase its common stock, pursuant to a separate warrant agreement. Specifically, the original lease, executed in 1984, provided for two forms of rent. The first was a scheduled rent, which initially consisted of a fixed amount but which, during the course of the 12-year lease, became an indexation of a fixed amount. The second was “additional rent”, which essentially passed on to GDC all costs, expenses or obligations of maintaining the property, such as real estate taxes, utilities, insurance, repairs, etc. The additional rent provisions remained unchanged under any of the three amendments to the lease.
The lease was first amended in 1992, to lower the scheduled rent by eliminating the indexation and lowering the fixed amount, in consideration for the warrant agreement, which provided for the issuance of warrants by GDC to Middlebury allowing the latter to purchase shares of the former's common stock. The number of warrants issued would be determined by a formula applied to the “net rental savings”, the difference between the fixed rent under the original lease and that under the amended lease.
Pursuant to this formulation of the warrant agreement, GDC duly issued warrants to Middlebury in October 1993. Although earlier that year Middlebury had made a claim against GDC for indemnification regarding environmental damages alleged by third parties, which subsequently evolved into a Federal action, the lessee GDC did not factor this claim or any other “additional rent” item into the calculation of the number of warrants issued. This was true despite the executions of the first amendment to the warrant agreement just after the environmental claim was made, and the second amendment to the warrant agreement at the time the warrants were issued. Also within this period, the second and third lease amendments were made, further reducing the scheduled rent.
The second amendment to the warrant agreement provided that the “net rental savings” be determined by the difference between what would have been the scheduled annual rent under the original lease and the scheduled annual rent paid as set forth in the second amended lease. GDC, however, declined to issue warrants for 1994 and 1995, claiming that due to the pending environmental indemnification claim, it was unable to calculate the number of warrants to be issued.
Bob on behalf of Middlebury commenced an action seeking specific performance of the obligation to undertaken by GDC to issue the stock warrants. The motion for summary judgment was denied. Bob on behalf of Middlebury took an appeal. After oral argument on the appeal, the Appellate Division, First Departmentreversed the denial of summary judgment and ordered GDC to issue the stock warrants to our client.
McCarthy Fingar's Business Litigation and Real Estate Transactions groups have also represented clients on real estate title disputes. Here, Robert M. Redis successfully obtained summary judgment at the trial court after extensive discovery. The issues involved restrictions on land use, historic preservation, zoning matters and doctrines of merger of ownership. The plaintiff commenced this action for declaration that the prior owner’s 1980 "subdivision" of Lot No. 4 violated the restrictive covenant prohibiting a lot subdivision without the approval of the owners of the other three lots. If the plaintiff's position was correct, Bob's clients could lose their homes. Their property was adjacent to a property listed on the New York State Historic Registry because of it involvement in the American Revolution. The trial court determined that, insofar as the prior owners of the property, the Benjamin family, either individually, or through their controlled corporation, Andros Realty Co., owned all of the parcels as of 1922, the restrictive covenant at issue was extinguished by the doctrine of merger. This determination was contested on appeal. The Appellate Division, Second Department, disagreed with the lower court and found that the merger had not occurred; but Bob won the appeal when they agreed with his alternative argument that the plaintiff's action was barred by laches. The laches argument was that the plaintiff sat back and did nothing, knowing that the homeowners were engaged in substantial construction on the lot. The plaintiff delayed seeking to enforce the restrictive covenant until after the homeowners had completed the bulk of the construction and incurred a great deal of expense with the knowledge of the plaintiff.
Having prevailed in the lower court, Kathleen Donelli persuaded the Appellate Division, Second Department to affirmed the trial court's decision, declaring the validity of an easement.
McCarthy Fingar's Business Litigation and Real Estate Transactions groups have large experience in real estate development issues, whether representing developers or local towns or municipalities. Here, Robert M. Redis represented the Town of Lewisboro in Northern Westchester, in upholding its local law requiring a developer of a clustered residential development to pay recreational fees in lieu of dedicating land in the development for park purposes. Previously the developer could designate certain property in the cluster development to be set aside for purposes of parks and recreation facilities, irrespective of whether the amount of nearby park and recreation facilities adequately served the specific development and the development's impact on town-wide recreational facilities.
Bob successfully upheld the law in the lower court against myriad challenges, including one arguing that the local law constituted an unconstitutional taking under the Fifth Amendment. Bob then successful defended the trial court's opinion before the Appellate Division, Second Department, and, then, before the New York Court of Appeals, in a matter of first impression.
Years later Bob was retained by his opponent, the developer, Bayswater, to handle litigation and appeals against a different municipality located on Long Island.
Representing Real Estate Developer Purchasing Real Estate for Retail Use
McCarthy Fingar's lawyers often represent clients buying real estate for commercial use. Here, Milton R. Gleit represented a real estate developer acquiring six lots from four sellers at a price exceeding $7 milllion for commercial redevelopment of the assemblage for retail use.