Motion,Ex Parte: Kpl Green Llc v. Greenport Hudson Associates Llc, Morgenstern Devoesick Pllc, Crazy Beer World Inc

On February 10, 2023 a Motion,Ex Parte was filed involving a dispute between Kpl Green Llc, and Crazy Beer World Inc, Crazy Beer World, Inc., Greenport Hudson Associates Llc, Morgenstern Devoesick Pllc, Morgenstern Devoesick Pllc, As Escrow Agent, for Commercial - Contract in the District Court of Rockland County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
----------------------------------------------------------------------X
KPL GREEN LLC,

Plaintiff, Index No: 030709/2023

-against- Motion Seq. No. 001

GREENPORT/HUDSON ASSOCIATES, LLC,
MORGENSTERN DEVOESICK PLLC, and
as Escrow Agent, and CRAZY BEER WORLD, INC.,

Defendants.
---------------------------------------------------------------------X

DEFENDANTS GREENPORT/HUDSON ASSOCIATES, LLC AND
MORGENSTERN DEVOESICK PLLC’s REPLY MEMORANDUM OF LAW IN
FURTHER SUPPORT OF THEIR JOINT MOTION TO DISMISS THE VERIFIED
COMPLAINT

LEWIS BRISBOIS BISGAARD & SMITH LLP
Jeffrey Y. Spiegel, Esq., Esq.
Stephen G. Rickershauser, Esq.
Attorneys for Defendant
Morgenstern DeVoesick PLLC
77 Water Street, Suite 2100
New York, New York 10005
(212) 232-1300

WOODS OVIATT GILMAN LLP
F. Michael Ostrander, Esq.
Attorneys for Defendant
Greenport Hudson Associates, LLC
1900 Bausch and Lomb Place
Rochester, New York 14604
(585) 987-2800

127072207.1 {9270559: }

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 2

ARGUMENT .................................................................................................................................. 4

I. THE BREACH OF CONTRACT CAUSE OF ACTION AGAINST GHA MUST
BE DISMISSED ..................................................................................................... 4

II. THE BREACH OF FIDUCIARY DUTY CAUSE OF ACTION AGAINST MDP
MUST BE DISMISSED ......................................................................................... 7

A. The Closing Statement Unequivocally Refutes Plaintiff’s Claim .................... 7

B. Plaintiff Has Abandoned Its Breach of Fiduciary Duty Cause of Action By
Failing to Challenge the Applicability of the Closing Statement ................... 10

C. Plaintiff’s Breach of Fiduciary Duty Cause of Action is Insufficiently Pled.. 10

CONCLUSION ............................................................................................................................. 11

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TABLE OF AUTHORITIES

Cases Page
Angeli v. Barket,
211 A.D.3d 896 (2d. Dept. 2022) ..............................................................................................5

Attias v. Costiera,
120 A.D.3d 1281 (2d Dept. 2014) .............................................................................................7

Baron v. Galasso,
83 A.D.3d 626 (2d Dept. 2011) ...............................................................................................11

Baumann v. Hanover Community Bank,
100 A.D.3d 814 (2d Dept. 2012) .............................................................................................11

Chiu v. Man Choi Chiu,
71 A.D.3d 621 (2d Dept. 2010) ...............................................................................................11

Coliseum Towers Asscos. V. County of Nassau,
2 A.D.3d 562 (2d Dept. 2003) ...................................................................................................7

Crawford v. Liz Claiborne, Inc.,
57 A.D.3d 270 (1st Dept. 2008)...............................................................................................10

Dubon v. Drexel,
195 A.D.3d 991 (2d Dept. 2021) ...............................................................................................5

Genovese v. Gambino,
309 A.D.2d 832 (2d Dept. 2003) .............................................................................................10

Kempisty v. 246 Spring Street, LLC,
92 A.D.3d 474 (1st Dept. 2012)...............................................................................................10

Muscara v. Lamberti,
133 A.D.2d 362 (2d Dept. 1987) .........................................................................................9, 10

Palmetto Partners, L.P. v. AJW Qualified Partners, LLC,
83 A.D.3d 804 (2d Dept. 2011) ...............................................................................................11

Pierce Coach Line, Inc. v. Port Wash. Union Free Sch. Dist,
213 A.D.3d 959 (2d Dept. 2023) ...............................................................................................5

Reiss v. Financial Performance Corp.,
97 N.Y.2d 195 (2001) ................................................................................................................4

Rosenberg v. Rosenberg,
180 A.D.2d 607 (1st Dept. 1992)...............................................................................................9

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Vermont Teddy Bear Co. v. 538 Madison Realty Co.,
1 N.Y.3d 470 (2004) ..................................................................................................................4

Westfiled Family Physicians, P.C. v. Healthnow N.Y., Inc.,
59 A.D.3d 1014 (4th Dept. 2009) ..............................................................................................7

Woss, LLC v. 218 Eckford, LLC,
102 A.D.3d 860 (2d Dept. 2013) .............................................................................................11

Rules
CPLR § 3211(a)(1) ......................................................................................................................1, 5

CPLR § 3211(a)(7) ............................................................................................................1, 2, 5, 10

CPLR § 3211(7) ...............................................................................................................................1

CPLR § 3016(b) .........................................................................................................................1, 11

iii

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PRELIMINARY STATEMENT

Defendants Greenport/Hudson Associates, LLC, (“GHA”) and Morgenstern DeVoesick

PLLC (“MDP”) (collectively “Defendants”), by and through their undersigned attorneys,

respectfully submit this Reply Memorandum of Law in Further Support of their Motion to Dismiss

the Verified Complaint of Plaintiff KPL Green LLC (“Plaintiff”), (1) pursuant to CPLR §§

3211(a)(1) and 3211(a)(7) dismissing the Verified Complaint’s First and Second Causes of Action

based on documentary evidence and for failure to state a cause of action; (2) pursuant to CPLR §

3016(b) dismissing the Second Cause of Action for failure to plead such a cause of action with

particularity, (3) awarding GHA judgment against Plaintiff in the amount of GHA’s costs,

disbursements and reasonable attorney’s fees incurred in this action, and (4) awarding such other

and further relief as the Court deems just and proper.

First, Plaintiff’s opposition ignores the plain and unambiguous terms of the parties’

Contract for the Purchase and Sale of Real Property, last dated June 7, 2022 (the “Contract”) (Doc.

2), and ignores existence of the executed Real Estate Closing Statement (“Closing Statement”)

(Doc. No. 48). These documents unequivocally and conclusively refute Plaintiff’s allegations.

Indeed, the executed Closing Statement irrefutably establishes that Plaintiff was fully aware that

no Escrow Fund was established at the time of Closing, Plaintiff unconditionally waived (in

exchange for a $74,865.38 credit) any requirement that the Escrow Fund be established, and

Plaintiff authorized the distribution of all proceeds as set forth in the Closing Statement, i.e., none

into an Escrow Fund. Accordingly, it is respectfully submitted that the documentary evidence

before the Court conclusively refutes Plaintiff’s First and Second Causes of Action, and those

causes of action must be dismissed pursuant to CPLR §§ 3211(a)(1) and (7).

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Second, Plaintiff’s opposition fails to remedy the deficiencies in its original pleadings,

which, among other things, fails to meet the heightened pleading requirements for a breach of

fiduciary duty cause of action. There are no allegations setting forth how MDP allegedly caused

any harm, or what Plaintiff’s damages actually are beyond mere conclusory and speculative claims.

These deficiencies mandate dismissal pursuant to CPLR § 3211(a)(7).

Finally, Defendant GHA should be awarded its costs, disbursements and reasonable

attorney’s fees incurred in this action pursuant to Contract Section 21.

STATEMENT OF FACTS

The facts relevant to Defendants’ Joint Motion are fully set forth in Defendants’ moving

papers. A brief summary of the salient and undisputed facts is set forth below.

Plaintiff’s predecessor-in-interest, as Purchaser, and GHA, as Seller, entered into the

Contract for the Purchase and Sale of Real Property, last dated June 7, 2022 (the “Contract”) (Doc.

No. 2). Complaint at Ex. A (Doc. No. 2) In pertinent part, Contract Section 2 states:

The purchase price shall be Five Million Nine Hundred Thousand
Dollars ($5,900,000) (“Purchase Price”) payable by Purchaser in
cash or certified funds at Closing.

At Closing, $578,910.00 of the Purchase Price shall be escrowed
(the “Escrow Fund”) with Seller’s attorneys as Escrow Agent
pending Seller’s execution of the proposed lease (“Beer Lease”)
with Crazy Beer World, Inc., d/b/a Beer Universe (“Beer
Universe”). *** Contract at §2 (emphasis added).

Contract Sections 12 and 14 further provide, in pertinent part:

12. SURVIVAL OF REPRESENTATIONS. All representations,
warranties and agreements made by either party shall not survive
Closing and Transfer of title.

***

14. DEFAULT. *** If Seller breaches any of its covenants or
obligations of Seller contained in this Contract or any representation

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or warranty made by Seller in this Contract is untrue or false in any
material respect, Purchaser shall be entitled to:

A. Close the transaction contemplated by this
Contract, thereby waiving such breach, default or
failure; or

B. Sue Seller for performance of this Contract; or….”

Contract at §§12 and 14 (emphasis added).

The transaction contemplated by the Contract closed on or about November 8, 2023 and

Plaintiff accepted title to the subject premises at that time. Complaint at ¶16; Gordon Aff. at ¶7.

In connection with that closing, the Plaintiff and GHA signed and exchanged the Closing

Statement. Gordon Aff. at ¶7; Ex. B (Doc. 48). The Closing Statement included a credit for

Plaintiff for the “Beer Lease”; the Closing Statement did not include a line item for an Escrow

Fund. Gordon Aff. at Ex. B. The Closing Statement detailed and accounted for every dollar that

was disbursed at the closing, who the money was to be disbursed to, and the purpose of each

disbursement. The Closing Statement made no reference to the establishment of the Escrow Fund.

The Closing Statement set forth the “Total Balance Due Seller at Closing” in the amount

of $5,331,029.32, expressly added the $500,000.00 deposit held by MDP, and subtracted the

“Total Expenses of Seller” in the amount of $2,834,730.07 to arrive at “Total Seller Proceeds of

$2,996,399.25.” (Gordon Aff. at Ex. B) The Closing Statement makes no reference to or

provision for an escrow fund to be created with those Seller Proceeds or otherwise. To the

contrary, the full $2,996,299.25 in Seller Proceeds were paid out as set forth in the Closing

Statement, i.e. not to MDP to fund the Escrow Fund. Specifically, by signing the Closing

Statement, Plaintiff agreed, consented, and authorized the disbursement of the “Seller Proceeds”

to be paid directly to Congress Asset Exchange, LLC, Susan Gordon, Myra Jody Whitehouse and

Robert Morgan as set forth therein. The Closing Statement did not call of any “Seller Proceeds”

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to be held in escrow. Id. At closing, Plaintiff did not create an escrow fund; the Plaintiff did not

fund an escrow fund; MDP did not sign an escrow agreement; and MDP did not receive escrow

funds.

Accordingly, the purchase and sale transaction contemplated by the Contract, was closed

on or about November 8, 2023, Plaintiff accepted title to the subject premises, the Seller Proceeds

were disbursed in accordance with the terms of the Closing Statement and no escrow fund was

established at Closing, all with Plaintiff’s knowledge and approval as indicated by its signature on

the Closing Statement. Complaint ¶ 16; DeVoesick Aff. ¶¶ 11-12; Gordon Aff. ¶ 7 and Exhibit B

(Doc. 48).

ARGUMENT

I. THE BREACH OF CONTRACT CAUSE OF ACTION AGAINST GHA MUST BE
DISMISSED

As stated by the New York State Court of Appeals, “when parties set down their agreement

in a clear, complete document, their writing should be enforced according to its terms,” and this

rule is applied with special force “in the context of real property transactions, where commercial

certainty is a paramount concern, and where the instrument was negotiated between sophisticated,

counseled business people negotiating at arm’s length.” Vermont Teddy Bear Co. v. 538 Madison

Realty Co., 1 N.Y.3d 470, 475 (2004) (internal quotation marks, ellipses and citations omitted).

Courts may not “by construction add or excise terms, nor distort the meaning of those used and

thereby make a new contract for the parties under the guise of interpreting the writing” Reiss v.

Financial Performance Corp., 97 N.Y.2d 195, 199 (2001) (internal quotation marks and citation

omitted).

Contract Section 2 plainly states that the “Purchase Price” was “payable by the Seller

[Plaintiff] at Closing” and, at Closing, “$578,910.00 of the Purchase Price,” which was payable

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by Plaintiff, was to be escrowed with MDP. Complaint Ex. A at §2. Thus, Plaintiff was clearly

responsible for the creation and funding of the Escrow Fund at Closing. It is undisputed that

Plaintiff failed to create or fund the Escrow Fund. (DeVoesick Aff. ¶¶ 11-12; Gordon Aff. ¶ 10).

As Plaintiff failed to allege its performance under the Contract and, in fact, did not perform

under the Contract, Plaintiff’s First Cause of Action fails to state a claim and must be dismissed

pursuant to CPLR § 3211(a)(7). See Pierce Coach Line, Inc. v. Port Wash. Union Free Sch. Dist,

213 A.D.3d 959 (2d Dept. 2023) (reversing denial of motion to dismiss); Angeli v. Barket, 211

A.D.3d 896 (2d. Dept. 2022) (affirming dismissal of breach of contract action).

Plaintiff’s First Cause of Action must also be dismissed as the documentary evidence

before the Court, specifically the Contract and the Closing Statement, each conclusively dispose

of Plaintiff’s claim. Dubon v. Drexel, 195 A.D.3d 991, 993 (2d Dept. 2021)(affirming grant of

dismissal pursuant to CPLR § 3211(a)(1) because the plain language of “the retainer itself”

conclusively disposed of the claim).

As indicated by Plaintiff’s signature on the Closing Statement, Plaintiff was fully aware

that no Escrow Fund was created at Closing and, in fact, Plaintiff approved disbursement of the

$2,996,299.25 in Seller Proceeds to Congress Asset Exchange, LLC, Susan Gordon, Myra Jody

Whitehouse and Robert Morgan. (Gordon Ex. B) (Doc. 48).

Furthermore, the unambiguous language of Contract Section 12 clearly states:

12. SURVIVAL OF REPRESENTATIONS. All representations,
warranties and agreements made by either party shall not survive
Closing and Transfer of title. (Complaint Ex. A § 12 (emphasis
added)).

There is no ambiguity. It is undisputed that Plaintiff closed the transaction on or about November

8, 2022 and took title to the subject property without the Escrow Fund having been created.

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(Complaint ¶16; Gordon Aff. ¶10; Ex. B). Accordingly, Plaintiff’s First Cause of Action is

foreclosed by the plain language of Contract Section 12.

Contract Section 14 also conclusively disposes of Plaintiff’s First Cause of Action, in

pertinent part, stating:

14. DEFAULT. *** If Seller breaches any of its covenants or
obligations of Seller contained in this Contract or any representation
or warranty made by Seller in this Contract is untrue or false in any
material respect, Purchaser shall be entitled to:

A. Close the transaction contemplated by this
Contract, thereby waiving such breach, default or
failure; or

B. Sue Seller for performance of this Contract; or….”

Again, it is undisputed that Plaintiff closed the transaction and accepted title to the subject property

without any Escrow Fund having been created. Complaint ¶16. Per the terms of the Contact,

Plaintiff waived any alleged breach, default, or failure and Plaintiff was compensated for that

waiver.

Plaintiff’s attempt to avoid the effect of the “Beer Lease” credit in the amount of

$74,865.38 given to Plaintiff at Closing is disingenuous and equally unavailing. A review of

Contract Section 2 and the Rent provision on page the Lease Agreement (Complaint Ex. B), readily

rebuts Plaintiff’s assertion. Contract § 2 contemplated “monthly rent payments” out of the Escrow

Fund from “the Closing Date up to and through the Forgiveness Period.” Per the Exhibit B Lease

Agreement, rent for the entire second year was $51,000.00. Complaint Ex. B pg. 3. The

$74,865.38 credit given to Plaintiff at Closing was a lump sum equivalent to one (1) year

($51,000.00), four (4) months ($17,000.00) and seven (7) weeks ($6,865.38) of rent. Thus, instead

of receiving monthly escrow disbursements of $4,250.00 from Closing through the “Forgiveness

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Period” as provided by the Contract, Plaintiff received a lump sum credit of $74,865.28 all at

Closing.

In a last ditch effort, Plaintiff lamely refers to the doctrine of contra proferentum, claiming

that the Contract was “drafted by Defendant.” (Plaintiff’s Memo of Law at pg. 14) However,

Plaintiff’s own attorney, Lena Paxos, Esq., has testified under oath that the Contract was the

product of negotiations stating, among other things, that “the Parties, through counsel, established

and Escrow Fund amount and inserted specific language in the Contract…” (Paxos Aff. ¶15; see

also ¶¶ 8, 13-15, 18.) Even if there was an ambiguity, which there is not, the doctrine of contra

proferentum would not be applicable because the Contract was the product of negotiations.

Coliseum Towers Asscos. V. County of Nassau, 2 A.D.3d 562, 565 (2d Dept. 2003); accord

Westfiled Family Physicians, P.C. v. Healthnow N.Y., Inc., 59 A.D.3d 1014, 1016 (4th Dept. 2009).

Accordingly, it is respectfully submitted that Plaintiff’s First Cause of Action must be

dismissed in all respects and GHA should be awarded its, costs, disbursements and attorney’s fees

incurred in this action.

II. THE BREACH OF FIDUCIARY DUTY CAUSE OF ACTION AGAINST MDP
MUST BE DISMISSED

A. The Closing Statement Unequivocally Refutes Plaintiff’s Claim

The unambiguous Closing Statement undeniably refutes Plaintiff’s claim for breach of

fiduciary duty because the Closing Statement establishes that no Escrow Fund was created at the

time of Closing. Plaintiff admits this point by failing to address or even acknowledge the Closing

Statement in its opposition papers. However, according to the case law cited by Plaintiff, the

Closing Statement is documentary evidence properly considered on this motion. See Pltf’s Memo

of Law in Opposition, at p. 5, citing Attias v. Costiera, 120 A.D.3d 1281 (2d Dept. 2014)

(“documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any

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other papers, the contents of which are essentially undeniable, would qualify as documentary

evidence in the proper case.”)

Pursuant to the Contract “$578,910.00 of the Purchase Price,” which was payable by

Plaintiff, was to be escrowed with MDP at the time of Closing. The Contract states:

At Closing, $578,910.00 of the Purchase Price shall be escrowed (the “Escrow Fund”) with
Seller’s attorneys as Escrow Agent (Escrow Fund”) with Seller’s attorneys as Escrow
Agent pending Seller’s execution of the proposed lease (“Beer Lease”) with Crazy Beer
World, Inc. d/b/a Beer Universe (“Beer Universe”).

Complaint Ex. A at §2.

The Closing Statement undeniably demonstrates that Plaintiff failed to fund and create the

above referenced Escrow Fund with MDP at Closing. (Gordon Ex. B) (Doc. 48) Rather, the

Closing Statement irrefutably establishes that, at Closing, Plaintiff received a $74,865.38 credit

for the “Beer Lease” and Plaintiff authorized the remaining $2,996,299.25 to be disbursed to

Congress Asset Exchange, LLC, Susan Gordon, Myra Jody Whitehouse and Robert Morgan, not

held in escrow by MDP. (Id.) As a signatory of the Closing Statement, Plaintiff was fully aware

that no Escrow Fund had been established.

Because MDP was not a signatory to the Closing Statement, or any escrow agreement, it

would have been inappropriate for MDP to keep $500,000.00 or disburse the proceeds in a manner

inconsistent with the Closing Statement.

The Court should not be persuaded by Plaintiff’s ill attempt to conflate the issuance of

other funds issued to MDP connected with the Contract with funding of the Escrow Fund. As

provided for by the Contract and Closing Statement, these funds were separate and apart from

the Escrow Fund. Pursuant to Paragraph 3 of the Contract, Plaintiff was obligated to make two

deposits of $250,000.00 each (the Initial and Additional Deposit), totaling $500,000.00

(“Deposit”). Complaint Ex. A at §3. The Closing Statement directed that the Deposit be included

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in the “Total Balance Due Seller at Closing.” The “Total Balance Due Seller at Closing” in the

amount of $5,331,029.32 expressly included this $500,000.00 Deposit held by MDP, then

subtracted the “Total Expenses of Seller” in the amount of $2,834,730.07 to arrive at “Total Seller

Proceeds of $2,996,399.25.” (Gordon Aff. at Ex. B) (Doc. 48) The Deposit was separate and

apart from the Escrow Fund.

The Closing Statement makes no reference to or provision for an escrow fund to be created

with these Seller Proceeds. To the contrary, the full $2,996,299.25 in Seller Proceeds was paid out

as set forth in the Closing Statement, i.e. not to MDP to fund the Escrow Fund.

Further, as Plaintiff admits in its opposition papers, the wire of $77,273.91 to MDP prior

to Closing was for the remaining proceeds due pursuant to the Contract ($92,273.91 less $15,000

pending Seller’s production of tenant’s estoppel certificates). See Pltf’s Memo in Opp., pg. 3.

Again, it is beyond dispute that these funds were paid out as set forth in the Closing Statement and

not to MDP to fund the Escrow Fund. (Gordon Aff. at Ex. B).

As demonstrated herein, and as more fully set forth in Defendants’ moving papers, because

there was no receipt of the $578,910.00 Escrow Fund at Closing, no fiduciary relationship between

Plaintiff and MDP existed after Closing, and any claim for breach of fiduciary duty must

necessarily fail. Muscara v. Lamberti, 133 A.D.2d 362, 365 (2d Dept. 1987); Rosenberg v.

Rosenberg, 180 A.D.2d 607 (1st Dept. 1992) (absent delivery of the subject of the escrow, no

escrow is created and the fiduciary duty of the designated escrow agent does not come into

existence.) 1

1
Assuming arguendo that an escrow agreement was created between Plaintiff and MDP (without MDP’s signature)
pursuant to the Contract, as alleged by Plaintiff in opposition, that agreement terminated by the Closing Statement,
which did not provide for funds to be placed in the Escrow Fund. As stated in Defendants’ moving papers, “even if
an escrow agreement did exist, ‘an essential element of an escrow is the delivery of the subject of the escrow to the
designated escrow agent.’ Muscara, 133 A.D.2d at 362.” Defts’ Memo of Law in Support, p.13.

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B. Plaintiff Has Abandoned Its Breach of Fiduciary Duty Cause of Action By Failing
to Challenge the Applicability of the Closing Statement

Plaintiff’s breach of fiduciary duty cause of action should be dismissed since Plaintiff

abandoned such claim by failing to oppose that branch of Defendants’ motion seeking to dismiss

such claim on the basis of the Closing Statement. Kempisty v. 246 Spring Street, LLC, 92 A.D.3d

474, 475 (1st Dept. 2012); Crawford v. Liz Claiborne, Inc., 57 A.D.3d 270 (1st Dept. 2008);

Genovese v. Gambino, 309 A.D.2d 832, 833 (2d Dept. 2003) (plaintiff’s failure to oppose a motion

to dismiss constitutes abandonment and the claims should be dismissed). As demonstrated in

Defendants’ moving papers, the Closing Statement undeniably refutes Plaintiff’s claim for breach

of fiduciary duty and demonstrates that no Escrow Fund was established at Closing. See Muscara,

133 A.D.2d at 362. (“an escrow agent has no fiduciary duty to a depositor prior to receiving a

depositor’s money.”) Plaintiff’s failure to address or even acknowledge the applicability of the

Closing Statement in its opposition papers warrants dismissal.

To the extent that the Court finds that Plaintiff did not abandon its claim, for the reasons

set forth in Defendants’ moving papers, and more fully set forth herein, dismissal is still warranted

as Plaintiff fails to state a cause of action for breach of fiduciary duty and its opposition otherwise

fails to rebut Defendants’ prima facie entitlement to dismissal.

C. Plaintiff’s Breach of Fiduciary Duty Cause of Action is Insufficiently Pled

Plaintiff’s opposition fails to address, let alone overcome, Defendants’ showing that the

Complaint fails to meet the heightened pleading requirements for a breach of fiduciary duty cause

of action and it is clear that the glaring deficiencies of its pleading mandate dismissal pursuant to

CPLR §3211(a)(7). As demonstrated by Defendants in their moving papers, there are no

allegations setting forth how MDP caused Plaintiff harm, and Plaintiff’s opposition fails to

otherwise revive such fatal deficiency of its pleading. The Complaint merely alleges that as a result

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of MDP’s failure to hold the Escrow Fund, Plaintiff has been injured in an amount no less than the

amount of the Escrow Fund. This conclusory allegation does not meet the particularity

requirements of CPLR §3016(b). Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83

A.D.3d 804, 808 (2d Dept. 2011); Chiu v. Man Choi Chiu, 71 A.D.3d 621, 623 (2d Dept. 2010).

The pleading offers no other supposed “misconduct” or resulting damages. It is axiomatic

that MDP cannot be liable for failing to hold escrow funds that were never in existence. Because

the pleading, affidavits, and documentary evidence all support that an Escrow Fund was never

established, dismissal is warranted. Woss, LLC v. 218 Eckford, LLC, 102 A.D.3d 860, 860 (2d

Dept. 2013); Baron v. Galasso, 83 A.D.3d 626, 628 (2d Dept. 2011); Baumann v. Hanover

Community Bank, 100 A.D.3d 814, 816 (2d Dept. 2012) (defendants “indisputably” demonstrated

“through evidentiary material” that plaintiff’s factual allegation was “not a fact at all”).

CONCLUSION

By reason of the foregoing and otherwise, Plaintiff’s Verified Complaint should be

dismissed with prejudice as against Defendants and defendant Greenport Hudson Associates LLC

should be awarded its costs, disbursements and attorney’s fees incurred in this action.

Dated: July 20, 2023
New York, New York

LEWIS BRISBOIS BISGAARD & SMITH LLP

By: /s/ Jeffrey Y. Spiegel, Esq.
Jeffrey Y. Spiegel, Esq.
Stephen G. Rickershauser, Esq.
Attorneys for Defendant
Morgenstern DeVoesick PLLC
77 Water Street, Suite 2100
New York, New York 10005
212-232-1300
Jeffrey.Spiegel@lewisbrisbois.com
Stephen.Rickershauser@lewisbrisbos.com

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FILED: ROCKLAND COUNTY CLERK 07/20/2023 06:16 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 07/20/2023

WOODS OVIATT GILMAN LLP

By: /s/ F. Michael Ostrander, Esq.
F. Michael Ostrander, Esq.
Attorneys for Defendant
Greenport Hudson Associates, LLC
1900 Bausch and Lomb Place
Rochester, New York 14604
(585) 987-2800
fostrander@woodsoviatt.com

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FILED: ROCKLAND COUNTY CLERK 07/20/2023 06:16 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 07/20/2023

Certificate of Compliance

Pursuant to the Uniform Civil Rules for the Supreme and County Courts, I hereby certify

that the number of words in the foregoing document, according to the word count on the word

processing program utilized, inclusive of point headings and footnotes, and exclusive of the

caption, tables of contents and tables of authorities, signature block and this certificate of

compliance is 3,826.

Dated: July 20, 2023
New York, New York

By: /s/ Jeffrey Y. Spiegel, Esq.
Jeffrey Y. Spiegel, Esq.

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Case Info

Judge

Sherri L Eisenpress Track Judge’s New Case

Case No.

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Document Filed Date

July 20, 2023

Case Filing Date

February 10, 2023

County

Parties

CONDON, BRIAN KEITH Attorney for the Plaintiff
CRAZY BEER WORLD INC Defendant
CRAZY BEER WORLD, INC. Defendant
GRAY, JUSTIN WILLIAM Attorney for the Defendant
GREENPORT HUDSON ASSOCIATES LLC Defendant
GREENPORT/HUDSON ASSOCIATES LLC Defendant
KPL GREEN LLC Plaintiff
MORGENSTERN DeVOESICK PLLC Defendant
MORGENSTERN DeVOESICK PLLC, as Escrow Agent Defendant
OSTRANDER, FRANCIS MICHAEL Attorney for the Defendant
RICKERSHAUSER, STEPHEN G. Attorney for the Defendant
ROSENBAUM, WARREN B Attorney for the Defendant
SPIEGEL, JEFFREY YEHUDA ARIA Attorney for the Defendant
LENA PAXOS Attorney
Jeffrey DeVoesick Attorney
ALBERT HRDLICKA Attorney

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Motion,Ex Parte: Kpl Green Llc v. Greenport Hudson Associates Llc, Morgenstern Devoesick Pllc, Crazy Beer World Inc

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Parties