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FILED: ROCKLAND COUNTY CLERK 11/29/2023 12:10 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/29/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF ROCKLAND
KPL GREEN LLC,
Plaintiff,
NOTICE OF APPEAL
vs.
Index No.: 030709/2023
GREENPORT HUDSON ASSOCIATES, LLC,
MORGENSTERN DEVOESICK, PLLC, and as
Escrow Agent, and CRAZY BEER WORLD, INC.,
Defendants.
Defendant Greenport Hudson Associates, LLC (“Defendant”), by and through its counsel,
Woods Oviatt Gilman LLP, hereby appeals to the Appellate Division, Second Department, of the
Supreme Court of the State of New York from the Decision and Order of the Hon. Rolf M.
Thorsen, A.J.S.C., dated October 31, 2023 and entered in the Rockland County Clerk's Office on
November 1, 2023 (“Order”). A copy of the Order is attached hereto as Exhibit A. Defendant
appeals from the whole of said Order and from each and every part thereof.
Dated: November 29, 2023
WOODS OVIATT GILMAN LLP
By: /s/ F. Michael Ostrander, Esq.
F. Michael Ostrander, Esq.
Attorneys for Defendant Greenport Hudson
Associates, LLC
1900 Bausch & Lomb Place
Rochester, New York 14604
585-987-2800
fostrander@woodsoviatt.com
{9408845: }
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TO: CONDON PAXOS PLLC
Brian K. Condon, Esq.
Attorneys for Plaintiff
55 Old Turnpike Road, Suite 502
Nanuet, New York 10954
854-627-8500
brian@condonpaxos.com
LEWIS BRISBOIS BISGAARD & SMITH, LLP
Jeffrey Y. Spiegel, Esq.
Attorneys for Defendant Morgenstern DeVoesick, PLLC
77 Water Street, Suite 2100
New York, New York 10005
646-783-1703
Jeffrey.spiegel@lewisbrisbois.com
MAYNARD, O'CONNOR, SMITH & CATALINOTTO, LLP
Justin W. Gray, Esq.
Attorneys for Defendant Crazy Beer World, Inc.
6 Tower Place
Albany, New York 12203
518-465-3553
gray@moscllp.com
{9408845: }
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EXHIBIT A
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NYSCEF DOC. NO. 57
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COUNTY CLERK 11/29/2023
11/01/2023 12:10
03:14 PM ) INDEX NO. 030709/2023
RECEIVED NYSCEF: 11/29/2023
11/01/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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KPL GREEN LLC,
Index No. 030709/2023
Plaintiff,
-against- NOTICE OF ENTRY
GREENPORT HUDSON ASSOCIATES, LLC,
MORGENSTERN DEVOESICK, PLLC and AS
Escrow Agent, and CRAZY BEER WORLD,
INC.,
Defendants.
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PLEASE TAKE NOTICE that the attached is a true copy of the DECISION AND
ORDER of the Honorable ROLF M. THORSEN, A.J.S.C., dated October 31, 2023, duly entered
in the office of the Clerk of the Supreme Court, Rockland County on November 1, 2023.
Dated: Nanuet, New York
November 1, 2023
Very truly yours,
CONDON PAXOS PLLC
By: _______________________
Brian K. Condon
Attorneys for Plaintiff
55 Old Turnpike Road, Suite 502
Nanuet, New York10954
(845) 627-8500 (telephone)
Brian@CondonPaxos.com
To: Via NYSCEF
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FILED: ROCKLAND COUNTY
COUNTY CLERK
CLERK 11/29/2023 INDEX
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NYSCEFDOC.
NYSCEF
NYSCEF DOC.NO.
DOC. NO.57
NO. 50
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5M RECEIVED
RECEIVED NYSCEF:
RECEIVED NYSCEF: 11/29/2023
NYSCEF: 11/01/2023
11/01/2023
SUPREME COURT: STATE OF NEW YORK
COUNTY OF ROCKLAND
X To commence the statutory time period
for appeals as of right (CPLR
5513[a]), you are advised to serve a
KPL GREEN LLC,
copy of this order, with notice of
entry, upon all parties.
Plaintiff,
DECISION & ORDER
-against-
Index No: 030709/2023
GREENPORT HUDSON ASSOCIATES, LLC,
MORGENSTERN DEVOESICK, PLLC and AS
Escrow Agent, and CRAZY BEER WORLD,
INC.,
Defendants.
X
HON. ROLF M. THORSEN, A.J.S.C.
Plaintiff commenced the within action alleging breach of
contract, breach of fiduciary duty, and declaratory judgment
against Defendants arising out of the purchase of a 118,500 square
foot commercial shopping plaza in Hudson, New York, commonly
referred to as the "Hudson Plaza" for $5.9 million. Defendants
Greenport Hudson Associates, LLC (hereinafter "Defendant
Greenport" or "Seller") and Morgenstern Devoesick, PLLC
(hereinafter "Defendant Morgenstern")(collectively referred to as
"Moving Defendants") jointly move pursuant to CPLR 3211(a)(1) and
(a)(7) to dismiss the complaint.1 The Court has considered the
following papers on the motion:
1. Moving Defendants' Notice of Motion (#001), Affidavit in
Support, Spiegel Affirmation in Support and Exhibit A
submitted therewith, Ostrander Affirmation in Support and
Exhibits A through D submitted therewith, Gordon Affidavit
in Support and Exhibits A and B submitted therewith, and
Memorandum of Law;
1 The first cause of action as against Defendant Greenport alleges breach of
contract; the second cause of action as against Defendant Morgenstern alleges
breach of fiduciary duty. The third cause of action as against Defendant
Crazy Beer World (hereinafter "Defendant Beer World") alleges declaratory
judgment for which Defendant Beer World filed its answer with counterclaims.
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2. Plaintiff's Affidavit in Opposition and Exhibits A through
I submitted therewith and Memorandum of Law in Opposition;
and
3. Moving Defendants' Reply Memorandum of Law.
On June 7, 2022, Plaintiff, as purchaser, and Defendant
Greenport, as seller, entered into a contract for the sale of the
Hudson Plaza in Hudson, New York for $5.9 million. Defendant
Morgenstern represented the seller in the real estate transaction.
Contained within the contract of sale was a lease contingency with
respect to Defendant Beer World. Specifically, prior to the
execution of the contract of sale with Plaintiff, Defendant
Greenport had entered into a lease agreement with Defendant Beer
World to lease approximately 17,000 square feet of space. The lease
provided Defendant Beer World with 120 days from the execution of
the lease to "move its existing New York State SLA [State Liquor
Authority] license" to the leased space. This provision was twice
amended, extending the date to December 31, 2022. Due to the
existence of the contingency lease with Defendant Beer World, the
contract between Plaintiff and the Moving Defendants provided, in
relevant part, as follows:2
2. Purchase Price. The purchase price shall be
Five Million Nine Hundred Thousand Dollars
($5,900,000)("Purchase Price") payable to
Purchaser in cash or certified check 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")"..
The respective parties have agreed that the
end date of several contingencies set forth in
the Beer Lease (including, but not limited to,
the liquor license contingencies) may exceed
the anticipated Closing Date, the Escrow Agent
for the Premises shall continue to hold the
Escrow Fund until such date as the Beer Lease
is executed and all contingencies are cleared,
2 In the Lease, "Purchaser" refers to Plaintiff herein; "Seller" refers
Defendant Greenport herein.
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satisfied, waived or removed or the Beer Lease
is canceled.
Within three (3) days of the Beer Lease not
being executed, Seller shall provide
Purchaser's counsel with written notice of the
same and, upon Purchaser's receipt of said
notice, the full amount of the Escrow Fund
shall be remitted to Purchaser's counsel. If
the Escrow Fund is dispersed to Purchaser as
a result of Beer Universe's failure to execute
the Beer Lease, or satisfy the contingencies
set forth therein, the Purchaser and/or its
affiliates covenant and agree that they shall
have no right to seek any further
indemnification or compensation from Seller in
excess of the Escrow Fund.
If the contingencies are satisfied, cleared,
waived and/or removed and the Beer Lease is
executed, then the full amount of the Escrow
Fund shall be transferred to the Seller, upon
three (3) days written notice to Purchaser's
counsel, less the monthly rent payments, as
set forth in the Beer Lease, which shall be
released to Purchaser in amounts equal to the
monthly rent and the four (4) month
construction period (the "Forgiveness
Period"). However, should the Beer Lease not
be fully executed on or before the Closing
Date, Seller shall also authorize the release
of said monthly rent payments from the Closing
Date up to and through the Forgiveness Period.
It being understood and agreed between Seller
and Purchaser that once rent payments are made
pursuant to the Beer Lease, no further monthly
payments from the Escrow Fund shall be
tendered to Purchaser and the remaining Escrow
Fund shall be released to Seller upon three
(3) days written notice to Purchaser.
See, Moving Defendants' Exhibit A [NYSCEF Doc. No. 28].
The contract further provided:
12. Survival of Representations. All
representations, warranties and agreements
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made by either party shall not survive Closing
and transfer of title.
See, Moving Defendants' Exhibit A 9NYSCEF Doc. No. 28].
The closing took place on November 8, 2022 and a Real Estate
Closing Statement was signed by both parties. The Real Estate
Closing Statement does not contain any line item for the monies
held in the Escrow Fund, pursuant to the terms of the contract.
Turning first to the Moving Defendants' motion to dismiss
pursuant to CPLR 3211(a)(1), such a motion "to dismiss the
complaint on the ground that the action is barred by documentary
evidence may be granted `only where the documentary evidence
utterly refutes [the] plaintiff's factual allegations,
conclusively establishing a defense as a matter of law.'" Route
202 Rest., LLC v. Old Crompond Rd., LLC, 166 A.D.3d 1035, 1036 (2d
Dept. 2018), quoting, Goshen v. Mutual Life Ins. Co. of NY, 98
N.Y.2d 314, 326 (2002). Applied here, the Court finds that Section
2 of the Contract pertaining to the creation of the Escrow Fund to
be ambiguous and thus, the motion to dismiss must be denied.
With respect to the Moving Defendants' motion to dismiss on
the ground that Plaintiff's complaint fails to state a cause of
action, it is well settled that "[o]n a motion to dismiss a
complaint pursuant to CPLR 3211(a)(7), the court must liberally
construe the complaint, accept all facts as alleged in the pleading
to be true, accord the plaintiff the benefit of every favorable
inference, and determine only whether the facts as alleged fit
within any cognizable legal theory." Delric Constr. Co., Inc. v.
New York City Sch. Constr. Auth., 204 A.D.3d 750, 751-752 (2d Dept.
2022)(Internal quotations and citations omitted). In addition,
where, as here, "evidentiary material is submitted and considered
on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7),
and the motion is not converted into one for summary judgment, the
question becomes whether the plaintiff has a cause of action, not
whether the plaintiff has stated one, and unless it has been shown
that a material fact as claimed by the plaintiff to be one is not
a fact at all and unless it can be said that no significant dispute
exists regarding it, dismissal should not eventuate." Id. at 752
(Internal quotations and citations omitted). Applied here, the
Court finds that dismissal is not warranted.
Based on the foregoing, it is hereby
ORDERED that the Moving Defendants' motion to dismiss (#001)
is denied in its entirety; and it is further
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ROCKLAND COUNTY CLERK
COUNTY CLERK 11/29/2023
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RECEIVED NYSCEF:
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ORDERED the Moving Defendants shall file an Answer to the
Complaint within twenty (20) days of the date of receipt, via
NYSCEF, of the within Decision and Order; and it is further
ORDERED that a preliminary conference shall be held in person
on November 30, 2023 at 9:45 am.
The foregoing constitutes the Decision and Order of this
Court.
E N
Dated: October -;(, 2023
New City, New York
HON. RO F M. THORSEN
Acting Supreme Court Justice
TO: NYSCEF
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Supreme Court of the State of New York
Appellate Division: Second Judicial Department
Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) - Civil
Case Title: Set forth the title of the case as it appears on the summons, notice of petition or order to For Court of Original Instance
show cause by which the matter was or is to be commenced, or as amended.
KPL GREEN LLC,
Date Notice of Appeal Filed
- against -
GREENPORT HUDSON ASSOCIATES, LLC, MORGENSTERN
For Appellate Division
DEVOESICK, PLLC, and as Escrow Agent, and CRAZY BEER WORLD,
INC.
Case Type Filing Type
• Civil Action
CPLR article 78 Proceeding
M Appeal Transferred Proceeding
CPLR article 75 Arbitration Special Proceeding Other Original Proceedings CPLR Article 78
Action Commenced under CPLR 214-g Habeas Corpus Proceeding CPLR Article 78 Executive Law § 298
Eminent Domain CPLR 5704 Review
Labor Law 220 or 220-b
Public Officers Law § 36
Real Property Tax Law § 1278
Nature of Suit: Check up to three of the following categories which best reflect the nature of the case.
Administrative Review Business Relationships
• Commercial Contracts
Declaratory Judgment Domestic Relations Election Law Estate Matters
Family Court Mortgage Foreclosure Miscellaneous Prisoner Discipline & Parole
Real Property Statutory Taxation Torts
(other than foreclosure)
Informational Statement - Civil
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Appeal
Paper Appealed From (Check one only): If an appeal has been taken from more than one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
Amended Decree Determination
= Order Resettled Order
Amended Judgement Finding Order & Judgment Ruling
Amended Order Interlocutory Decree Partial Decree Other (specify):
Decision Interlocutory Judgment Resettled Decree
Decree Judgment Resettled Judgment
Court: Supreme Court County: Rockland
Dated: 11/01/2023 Entered: 11/01/2023
Judge (name in full): Rolf M. Thorsen Index No.: 030709/2023
Stage: M Interlocutory Final Post-Final Trial: Yes M No If Yes: Jury Non-Jury
Prior Unperfected Appeal and Related Case Information
Are any appeals arising in the same action or proceeding currently pending in the court? Yes No
If Yes, please set forth the Appellate Division Case Number assigned to each such appeal.
Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction, and if so, the status of the case:
Original Proceeding
Commenced by: Order to Show Cause Notice of Petition Writ of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division:
Proceeding Transferred Pursuant to CPLR 7804(g)
Court: Choose Court County: Choose County
Judge (name in full): Order of Transfer Date:
CPLR 5704 Review of Ex Parte Order:
Court: Choose Court County: Choose County
Judge (name in full): Dated:
Description of Appeal, Proceeding or Application and Statement of Issues
Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
Appeal of Decision and Order dated 11/1/23 denying Defendants Greenport Hudson and Morgenstern
Devoesick's Motion to Dismiss
Informational Statement - Civil
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Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific relief sought on appeal.
Appellant will seek reversal of the trial court’s denial of the joint motion to dismiss plaintiff’s Verified
Complaint pursuant to CPLR Section 3211(a)(1) and (a)(7). The undisputed facts and the express terms
of the governing purchase and sale agreement, as well as the signed closing statement, conclusively
established defenses to plaintiff’s claims as a matter of law and plaintiff’s Verified Complaint should have
been dismissed. It was undisputed that no escrow fund was created at closing, that the real estate
transaction closed, and plaintiff accepted title to the premises without the creation of an escrow fund and
further authorized disbursement of the sale proceeds in accordance with the express terms of the closing
statement. It is respectfully submitted that the trial court erred in denying the joint motion to dismiss
plaintiff’ Verified Complaint.
Party Information
Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this
form is to be filed for a proceeding commenced in this court, fill in only the party’s name and his, her, or its status in this
court.
No. Party Name Original Status Appellate Division Status
1 Greenport Hudson Associates, LLC Defendant Appellant
2 KPL Green LLC Plaintiff Respondent
3 Morgenstern Devoesick, PLLC Defendant Respondent
4 Crazy Beer World, Inc. Defendant Respondent
5
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9
10
11
12
13
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Informational Statement - Civil
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Attorney Information
Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or
himself, the box marked “Pro Se” must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.
Attorney/Firm Name: Woods Oviatt Gilman LLP, F. Michael Ostrander, Esq.
Address: 1900 Bausch & Lomb Place
City: Rochester State: NY Zip: 14604 Telephone No: 585-987-2800
E-mail Address: fostrander@woodsoviatt.com
Attorney Type:
= Retained Assigned Government Pro Se Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):1
Attorney/Firm Name: Condon Paxos PLLC, Brian K. Condon, Esq.
Address: 55 Old Turnpike Road, Suite 502
City: Nanuet State: NY Zip: 10954 Telephone No: 854-627-8500
E-mail Address: brian@condonpaxos.com
Attorney Type:
= Retained Assigned Government Pro Se Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):2
Attorney/Firm Name: Lewis Brisbois Bisgaard & Smith, LLP, Jeffrey Y. Spiegel, Esq.
Address: 77 Water Street, Suite 2100
City: New York State: NY Zip: 10005 Telephone No: 646-783-1703
E-mail Address: jeffrey.spiegel@lewisbrisbois.com
Attorney Type:
= Retained Assigned Government Pro Se Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above): 3
Attorney/Firm Name: Maynard, O'Connor, Smith & Catalinotto, LLP, Justin W. Gray, Esq.
Address: 6 Tower Place
City: Albany State: NY Zip: 12203 Telephone No: 518-465-3553
E-mail Address: gray@moscllp.com
Attorney Type:
= Retained Assigned Government Pro Se Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):4
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: Retained Assigned Government Pro Se Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above): 3
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address: gray@moscllp.com
Attorney Type: Retained Assigned Government Pro Se Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Informational Statement - Civil
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STATE OF NEW YORK
SUPREME COURT COUNTY OF ROCKLAND
KPL GREEN LLC,
Plaintiff,
v. AFFIDAVIT OF SERVICE
GREENPORT HUDSON ASSOCIATES, LLC,
MORGENSTERN DEVOESICK, PLLC, and as Escrow Index No.: 030709/2023
Agent, and CRAZY BEER WORLD, INC.,
Defendants.
STATE OF NEW YORK
COUNTY OF MONROE SS:
JOANNE DREW, being duly sworn, deposes and says that Deponent is not a party to the
action, is over 18 years of age, and resides at Rochester, New York.
On November 29, 2023 Deponent served the Notice of Appeal and Informational
Statement upon:
MAYNARD, O'CONNOR, SMITH & LEWIS BRISBOIS BISGAARD & SMITH,
CATALINOTTO, LLP LLP
Justin W. Gray, Esq. Jeffrey Y. Spiegel, Esq.
Attorneys for Defendant Crazy Beer Attorneys for Defendant Morgenstern
World, Inc. DeVoesick,
6 Tower Place PLLC
Albany, New York 12203 77 Water Street, Suite 2100
New York, New York 10005
CONDON PAXOS PLLC
Brian K. Condon, Esq.
Attorneys for Plaintiff
55 Old Turnpike Road, Suite 502
Nanuet, New York 10954
the addresses designated for that purpose by depositing a true copy of same enclosed in a
postpaid properly addressed wrapper, in an official depository under the exclusive care and
custody of United States Postal Service.
nne Drew
Sworn to before me this
29th j ay of November, 2023. CAROL A. CROSS
Notary Public, State of New York
Qualified in Monroe County
011 Reg. No. 01CR4865277
Commission Expires 07/07/2I_Le
Notary Public
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FILED: ROCKLAND COUNTY CLERK 11/29/2023 12:10 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/29/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF ROCKLAND KPL GREEN LLC, Plaintiff, NOTICE OF APPEAL vs. Index No.: 030709/2023 GREENPORT HUDSON ASSOCIATES, LLC, MORGENSTERN DEVOESICK, PLLC, and as Escrow Agent, and CRAZY BEER WORLD, INC., Defendants. Defendant Greenport Hudson Associates, LLC (“Defendant”), by and through its counsel, Woods Oviatt Gilman LLP, hereby appeals to the Appellate Division, Second Department, of the Supreme Court of the State of New York from the Decision and Order of the Hon. Rolf M. Thorsen, A.J.S.C., dated October 31, 2023 and entered in the Rockland County Clerk's Office on November 1, 2023 (“Order”). A copy of the Order is attached hereto as Exhibit A. Defendant appeals from the whole of said Order and from each and every part thereof. Dated: November 29, 2023 WOODS OVIATT GILMAN LLP By: /s/ F. Michael Ostrander, Esq. F. Michael Ostrander, Esq. Attorneys for Defendant Greenport Hudson Associates, LLC 1900 Bausch & Lomb Place Rochester, New York 14604 585-987-2800 fostrander@woodsoviatt.com {9408845: } 1 of 14 FILED: ROCKLAND COUNTY CLERK 11/29/2023 12:10 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/29/2023 TO: CONDON PAXOS PLLC Brian K. Condon, Esq. Attorneys for Plaintiff 55 Old Turnpike Road, Suite 502 Nanuet, New York 10954 854-627-8500 brian@condonpaxos.com LEWIS BRISBOIS BISGAARD & SMITH, LLP Jeffrey Y. Spiegel, Esq. Attorneys for Defendant Morgenstern DeVoesick, PLLC 77 Water Street, Suite 2100 New York, New York 10005 646-783-1703 Jeffrey.spiegel@lewisbrisbois.com MAYNARD, O'CONNOR, SMITH & CATALINOTTO, LLP Justin W. Gray, Esq. Attorneys for Defendant Crazy Beer World, Inc. 6 Tower Place Albany, New York 12203 518-465-3553 gray@moscllp.com {9408845: } 2 of 14 FILED: ROCKLAND COUNTY CLERK 11/29/2023 12:10 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/29/2023 EXHIBIT A 3 of 14 IFILED: ROCKLAND NYSCEF DOC. NO. 57 51 COUNTY CLERK 11/29/2023 11/01/2023 12:10 03:14 PM ) INDEX NO. 030709/2023 RECEIVED NYSCEF: 11/29/2023 11/01/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------------X KPL GREEN LLC, Index No. 030709/2023 Plaintiff, -against- NOTICE OF ENTRY GREENPORT HUDSON ASSOCIATES, LLC, MORGENSTERN DEVOESICK, PLLC and AS Escrow Agent, and CRAZY BEER WORLD, INC., Defendants. ------------------------------------------------------------------X PLEASE TAKE NOTICE that the attached is a true copy of the DECISION AND ORDER of the Honorable ROLF M. THORSEN, A.J.S.C., dated October 31, 2023, duly entered in the office of the Clerk of the Supreme Court, Rockland County on November 1, 2023. Dated: Nanuet, New York November 1, 2023 Very truly yours, CONDON PAXOS PLLC By: _______________________ Brian K. Condon Attorneys for Plaintiff 55 Old Turnpike Road, Suite 502 Nanuet, New York10954 (845) 627-8500 (telephone) Brian@CondonPaxos.com To: Via NYSCEF 41 of of 14 6 FILED: ROCKLAND FILED: ROCKLAND COUNTY COUNTY CLERK CLERK 11/29/2023 INDEX INDEXNO. NO.030709/2023 FILED: ROCKLAND COUNTY CLERK 11/01/2023 12:10 11/01/2023 12:03 PM 03:14 M2:MA PM PM) INDEX NO. 030709/2023 030709/2023 NYSCEFDOC. NYSCEF NYSCEF DOC.NO. DOC. NO.57 NO. 50 51 5M RECEIVED RECEIVED NYSCEF: RECEIVED NYSCEF: 11/29/2023 NYSCEF: 11/01/2023 11/01/2023 SUPREME COURT: STATE OF NEW YORK COUNTY OF ROCKLAND X To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a KPL GREEN LLC, copy of this order, with notice of entry, upon all parties. Plaintiff, DECISION & ORDER -against- Index No: 030709/2023 GREENPORT HUDSON ASSOCIATES, LLC, MORGENSTERN DEVOESICK, PLLC and AS Escrow Agent, and CRAZY BEER WORLD, INC., Defendants. X HON. ROLF M. THORSEN, A.J.S.C. Plaintiff commenced the within action alleging breach of contract, breach of fiduciary duty, and declaratory judgment against Defendants arising out of the purchase of a 118,500 square foot commercial shopping plaza in Hudson, New York, commonly referred to as the "Hudson Plaza" for $5.9 million. Defendants Greenport Hudson Associates, LLC (hereinafter "Defendant Greenport" or "Seller") and Morgenstern Devoesick, PLLC (hereinafter "Defendant Morgenstern")(collectively referred to as "Moving Defendants") jointly move pursuant to CPLR 3211(a)(1) and (a)(7) to dismiss the complaint.1 The Court has considered the following papers on the motion: 1. Moving Defendants' Notice of Motion (#001), Affidavit in Support, Spiegel Affirmation in Support and Exhibit A submitted therewith, Ostrander Affirmation in Support and Exhibits A through D submitted therewith, Gordon Affidavit in Support and Exhibits A and B submitted therewith, and Memorandum of Law; 1 The first cause of action as against Defendant Greenport alleges breach of contract; the second cause of action as against Defendant Morgenstern alleges breach of fiduciary duty. The third cause of action as against Defendant Crazy Beer World (hereinafter "Defendant Beer World") alleges declaratory judgment for which Defendant Beer World filed its answer with counterclaims. Page 1 of 5 52 1 of of 14 6 5 FILED: ROCKLAND COUNTY CLERK 11/29/2023 11/01/2023 12:10 12:03 PM 03:14 INDEX NO. 030709/2023 NYSCEF DOC. NO. 57 50 51 RECEIVED NYSCEF: 11/29/2023 11/01/2023 2. Plaintiff's Affidavit in Opposition and Exhibits A through I submitted therewith and Memorandum of Law in Opposition; and 3. Moving Defendants' Reply Memorandum of Law. On June 7, 2022, Plaintiff, as purchaser, and Defendant Greenport, as seller, entered into a contract for the sale of the Hudson Plaza in Hudson, New York for $5.9 million. Defendant Morgenstern represented the seller in the real estate transaction. Contained within the contract of sale was a lease contingency with respect to Defendant Beer World. Specifically, prior to the execution of the contract of sale with Plaintiff, Defendant Greenport had entered into a lease agreement with Defendant Beer World to lease approximately 17,000 square feet of space. The lease provided Defendant Beer World with 120 days from the execution of the lease to "move its existing New York State SLA [State Liquor Authority] license" to the leased space. This provision was twice amended, extending the date to December 31, 2022. Due to the existence of the contingency lease with Defendant Beer World, the contract between Plaintiff and the Moving Defendants provided, in relevant part, as follows:2 2. Purchase Price. The purchase price shall be Five Million Nine Hundred Thousand Dollars ($5,900,000)("Purchase Price") payable to Purchaser in cash or certified check 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")".. The respective parties have agreed that the end date of several contingencies set forth in the Beer Lease (including, but not limited to, the liquor license contingencies) may exceed the anticipated Closing Date, the Escrow Agent for the Premises shall continue to hold the Escrow Fund until such date as the Beer Lease is executed and all contingencies are cleared, 2 In the Lease, "Purchaser" refers to Plaintiff herein; "Seller" refers Defendant Greenport herein. Page 2 of 5 63 2 of of 14 5 6 FILED: INDEX INDEX NO. NO. 030709/2023 FILED: ROCKLAND ROCKLAND COUNTY COUNTY CLERK CLERK 11/29/2023 11/01/2023 12:10 12:03 PM 03:14 PM 030709/2023 NYSCEF NYSCEF DOC. DOC. NO. NO. 57 50 51 RECEIVED RECEIVED NYSCEF: 11/29/2023 NYSCEF: 11/01/2023 satisfied, waived or removed or the Beer Lease is canceled. Within three (3) days of the Beer Lease not being executed, Seller shall provide Purchaser's counsel with written notice of the same and, upon Purchaser's receipt of said notice, the full amount of the Escrow Fund shall be remitted to Purchaser's counsel. If the Escrow Fund is dispersed to Purchaser as a result of Beer Universe's failure to execute the Beer Lease, or satisfy the contingencies set forth therein, the Purchaser and/or its affiliates covenant and agree that they shall have no right to seek any further indemnification or compensation from Seller in excess of the Escrow Fund. If the contingencies are satisfied, cleared, waived and/or removed and the Beer Lease is executed, then the full amount of the Escrow Fund shall be transferred to the Seller, upon three (3) days written notice to Purchaser's counsel, less the monthly rent payments, as set forth in the Beer Lease, which shall be released to Purchaser in amounts equal to the monthly rent and the four (4) month construction period (the "Forgiveness Period"). However, should the Beer Lease not be fully executed on or before the Closing Date, Seller shall also authorize the release of said monthly rent payments from the Closing Date up to and through the Forgiveness Period. It being understood and agreed between Seller and Purchaser that once rent payments are made pursuant to the Beer Lease, no further monthly payments from the Escrow Fund shall be tendered to Purchaser and the remaining Escrow Fund shall be released to Seller upon three (3) days written notice to Purchaser. See, Moving Defendants' Exhibit A [NYSCEF Doc. No. 28]. The contract further provided: 12. Survival of Representations. All representations, warranties and agreements Page 3 of 5 74 3ofof146 5 FILED: ROCKLAND FILED: ROCKLAND COUNTY COUNTY CLERK CLERK 11/29/2023 INDEX INDEXNO. NO.030709/2023 FILED: ROCKLAND COUNTY CLERK 11/01/2023 12:10 11/01/2023 12:03 PM 03:14 M2:1113 PM P) INDEX NO. 030709/2023 030709/2023 NYSCEFDOC. NYSCEF NYSCEF DOC.NO. DOC. NO.57 NO. 50 51 5M RECEIVED NYSCEF: RECEIVED NYSCEF: RECEIVED 11/29/2023 NYSCEF: 11/01/2023 11/01/2023 made by either party shall not survive Closing and transfer of title. See, Moving Defendants' Exhibit A 9NYSCEF Doc. No. 28]. The closing took place on November 8, 2022 and a Real Estate Closing Statement was signed by both parties. The Real Estate Closing Statement does not contain any line item for the monies held in the Escrow Fund, pursuant to the terms of the contract. Turning first to the Moving Defendants' motion to dismiss pursuant to CPLR 3211(a)(1), such a motion "to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted `only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law.'" Route 202 Rest., LLC v. Old Crompond Rd., LLC, 166 A.D.3d 1035, 1036 (2d Dept. 2018), quoting, Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 (2002). Applied here, the Court finds that Section 2 of the Contract pertaining to the creation of the Escrow Fund to be ambiguous and thus, the motion to dismiss must be denied. With respect to the Moving Defendants' motion to dismiss on the ground that Plaintiff's complaint fails to state a cause of action, it is well settled that "[o]n a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." Delric Constr. Co., Inc. v. New York City Sch. Constr. Auth., 204 A.D.3d 750, 751-752 (2d Dept. 2022)(Internal quotations and citations omitted). In addition, where, as here, "evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate." Id. at 752 (Internal quotations and citations omitted). Applied here, the Court finds that dismissal is not warranted. Based on the foregoing, it is hereby ORDERED that the Moving Defendants' motion to dismiss (#001) is denied in its entirety; and it is further Page 4 of 5 84 5 of of 14 6 5 FILED: ROCKLAND FILED: FILED: ROCKLAND COUNTY ROCKLAND COUNTY CLERK COUNTY CLERK 11/29/2023 CLERK 11/01/2023 12:10 11/01/2023 12:03 PM 03:14 M2:1113 PM PM INDEX INDEXNO. INDEX NO.030709/2023 NO. 030709/2023 030709/2023 NYSCEFDOC. NYSCEF NYSCEF DOC.NO. DOC. NO.57 NO. 50 51 5M RECEIVED NYSCEF: 11/29/2023 NYSCEF: 11/01/2023 RECEIVED NYSCEF: RECEIVED 11/01/2023 ORDERED the Moving Defendants shall file an Answer to the Complaint within twenty (20) days of the date of receipt, via NYSCEF, of the within Decision and Order; and it is further ORDERED that a preliminary conference shall be held in person on November 30, 2023 at 9:45 am. The foregoing constitutes the Decision and Order of this Court. E N Dated: October -;(, 2023 New City, New York HON. RO F M. THORSEN Acting Supreme Court Justice TO: NYSCEF Page 5 of 5 95 6 of of 14 5 6 FILED: ROCKLAND COUNTY CLERK 11/29/2023 12:10 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/29/2023 Supreme Court of the State of New York Appellate Division: Second Judicial Department Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) - Civil Case Title: Set forth the title of the case as it appears on the summons, notice of petition or order to For Court of Original Instance show cause by which the matter was or is to be commenced, or as amended. KPL GREEN LLC, Date Notice of Appeal Filed - against - GREENPORT HUDSON ASSOCIATES, LLC, MORGENSTERN For Appellate Division DEVOESICK, PLLC, and as Escrow Agent, and CRAZY BEER WORLD, INC. Case Type Filing Type • Civil Action CPLR article 78 Proceeding M Appeal Transferred Proceeding CPLR article 75 Arbitration Special Proceeding Other Original Proceedings CPLR Article 78 Action Commenced under CPLR 214-g Habeas Corpus Proceeding CPLR Article 78 Executive Law § 298 Eminent Domain CPLR 5704 Review Labor Law 220 or 220-b Public Officers Law § 36 Real Property Tax Law § 1278 Nature of Suit: Check up to three of the following categories which best reflect the nature of the case. Administrative Review Business Relationships • Commercial Contracts Declaratory Judgment Domestic Relations Election Law Estate Matters Family Court Mortgage Foreclosure Miscellaneous Prisoner Discipline & Parole Real Property Statutory Taxation Torts (other than foreclosure) Informational Statement - Civil 10 of 14 FILED: ROCKLAND COUNTY CLERK 11/29/2023 12:10 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/29/2023 Appeal Paper Appealed From (Check one only): If an appeal has been taken from more than one order or judgment by the filing of this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. Amended Decree Determination = Order Resettled Order Amended Judgement Finding Order & Judgment Ruling Amended Order Interlocutory Decree Partial Decree Other (specify): Decision Interlocutory Judgment Resettled Decree Decree Judgment Resettled Judgment Court: Supreme Court County: Rockland Dated: 11/01/2023 Entered: 11/01/2023 Judge (name in full): Rolf M. Thorsen Index No.: 030709/2023 Stage: M Interlocutory Final Post-Final Trial: Yes M No If Yes: Jury Non-Jury Prior Unperfected Appeal and Related Case Information Are any appeals arising in the same action or proceeding currently pending in the court? Yes No If Yes, please set forth the Appellate Division Case Number assigned to each such appeal. Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other jurisdiction, and if so, the status of the case: Original Proceeding Commenced by: Order to Show Cause Notice of Petition Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: Proceeding Transferred Pursuant to CPLR 7804(g) Court: Choose Court County: Choose County Judge (name in full): Order of Transfer Date: CPLR 5704 Review of Ex Parte Order: Court: Choose Court County: Choose County Judge (name in full): Dated: Description of Appeal, Proceeding or Application and Statement of Issues Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. Appeal of Decision and Order dated 11/1/23 denying Defendants Greenport Hudson and Morgenstern Devoesick's Motion to Dismiss Informational Statement - Civil 11 of 14 FILED: ROCKLAND COUNTY CLERK 11/29/2023 12:10 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/29/2023 Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific relief sought on appeal. Appellant will seek reversal of the trial court’s denial of the joint motion to dismiss plaintiff’s Verified Complaint pursuant to CPLR Section 3211(a)(1) and (a)(7). The undisputed facts and the express terms of the governing purchase and sale agreement, as well as the signed closing statement, conclusively established defenses to plaintiff’s claims as a matter of law and plaintiff’s Verified Complaint should have been dismissed. It was undisputed that no escrow fund was created at closing, that the real estate transaction closed, and plaintiff accepted title to the premises without the creation of an escrow fund and further authorized disbursement of the sale proceeds in accordance with the express terms of the closing statement. It is respectfully submitted that the trial court erred in denying the joint motion to dismiss plaintiff’ Verified Complaint. Party Information Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this form is to be filed for a proceeding commenced in this court, fill in only the party’s name and his, her, or its status in this court. No. Party Name Original Status Appellate Division Status 1 Greenport Hudson Associates, LLC Defendant Appellant 2 KPL Green LLC Plaintiff Respondent 3 Morgenstern Devoesick, PLLC Defendant Respondent 4 Crazy Beer World, Inc. Defendant Respondent 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Informational Statement - Civil 12 of 14 FILED: ROCKLAND COUNTY CLERK 11/29/2023 12:10 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/29/2023 Attorney Information Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or himself, the box marked “Pro Se” must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name: Woods Oviatt Gilman LLP, F. Michael Ostrander, Esq. Address: 1900 Bausch & Lomb Place City: Rochester State: NY Zip: 14604 Telephone No: 585-987-2800 E-mail Address: fostrander@woodsoviatt.com Attorney Type: = Retained Assigned Government Pro Se Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above):1 Attorney/Firm Name: Condon Paxos PLLC, Brian K. Condon, Esq. Address: 55 Old Turnpike Road, Suite 502 City: Nanuet State: NY Zip: 10954 Telephone No: 854-627-8500 E-mail Address: brian@condonpaxos.com Attorney Type: = Retained Assigned Government Pro Se Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above):2 Attorney/Firm Name: Lewis Brisbois Bisgaard & Smith, LLP, Jeffrey Y. Spiegel, Esq. Address: 77 Water Street, Suite 2100 City: New York State: NY Zip: 10005 Telephone No: 646-783-1703 E-mail Address: jeffrey.spiegel@lewisbrisbois.com Attorney Type: = Retained Assigned Government Pro Se Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): 3 Attorney/Firm Name: Maynard, O'Connor, Smith & Catalinotto, LLP, Justin W. Gray, Esq. Address: 6 Tower Place City: Albany State: NY Zip: 12203 Telephone No: 518-465-3553 E-mail Address: gray@moscllp.com Attorney Type: = Retained Assigned Government Pro Se Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above):4 Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: Retained Assigned Government Pro Se Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): 3 Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: gray@moscllp.com Attorney Type: Retained Assigned Government Pro Se Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Informational Statement - Civil 13 of 14 FILED: ROCKLAND COUNTY CLERK 11/29/2023 12:10 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/29/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF ROCKLAND KPL GREEN LLC, Plaintiff, v. AFFIDAVIT OF SERVICE GREENPORT HUDSON ASSOCIATES, LLC, MORGENSTERN DEVOESICK, PLLC, and as Escrow Index No.: 030709/2023 Agent, and CRAZY BEER WORLD, INC., Defendants. STATE OF NEW YORK COUNTY OF MONROE SS: JOANNE DREW, being duly sworn, deposes and says that Deponent is not a party to the action, is over 18 years of age, and resides at Rochester, New York. On November 29, 2023 Deponent served the Notice of Appeal and Informational Statement upon: MAYNARD, O'CONNOR, SMITH & LEWIS BRISBOIS BISGAARD & SMITH, CATALINOTTO, LLP LLP Justin W. Gray, Esq. Jeffrey Y. Spiegel, Esq. Attorneys for Defendant Crazy Beer Attorneys for Defendant Morgenstern World, Inc. DeVoesick, 6 Tower Place PLLC Albany, New York 12203 77 Water Street, Suite 2100 New York, New York 10005 CONDON PAXOS PLLC Brian K. Condon, Esq. Attorneys for Plaintiff 55 Old Turnpike Road, Suite 502 Nanuet, New York 10954 the addresses designated for that purpose by depositing a true copy of same enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of United States Postal Service. nne Drew Sworn to before me this 29th j ay of November, 2023. CAROL A. CROSS Notary Public, State of New York Qualified in Monroe County 011 Reg. No. 01CR4865277 Commission Expires 07/07/2I_Le Notary Public {9409365: } 14 of 14