Preview
INDEX NO. 030709/2023
FILED: ROCKLAND COUNTY CLERK 11/01/2023 03:14 PM
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 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 Y ork
November 1, 2023
Very truly yours,
CONDON PAXOS PLLC
By Pret feKe CAM
In A AA Cn
Brian K. Condon
Attorneys for Plaintiff
55 Old Tumpike Road, Suite 502
Nanuet, New Y ork10954
(845) 627-8500 (telephone)
Brian@ CondonPaxos.com
To: Via NY SCEF
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INDEX NO. 030709/2023
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/01/2023
SUPREME COURT: STATE OF NEW YORK
COUNTY OF ROCKLAND
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.
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 square
purchase of a 118,500
foot commercial shopping in Hudson, plaza commonly New York,
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.! 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;
+The first cause of against Defendant Greenport
action as 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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NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/01/2023
Plaintiff’s Affidavit in Opposition and Exhibits A through
I submitted therewith and Memorandum of Law in Opposition;
and
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 the of
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 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,
2In 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. IE
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 rentpayments, 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 shallalso 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:
TZ. Survival of Representations. All
representations, warranties and agreements
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a
(FILED: ROCKLAND COUNTY CLERK 11/01/2023 2:03 PM INDEX NO. 030709/2023 —
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 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. rn 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.¥.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 complaint
Plaintiff’s fails to state a cause of
action, it is that
well settled
“[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
” Delric Constr. Co., v
within any cognizable legal theory. Ine.
New York City Sch. Constr. Auth., 204 A.D.3d 750, 781-7152 (2d Dept.
2022) (Internal quotations and citations omitted). In addition,
where, as here, “evidentia ry 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
" Id. at 752
exists regarding it, dismissal should not eventuate.
(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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NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 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.
Dated: October
New City,
4, 2023
New York C,
HON.) ROLF M. THORSEN
Acting Supreme Court Justice
TO: NYSCEF
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Preview
INDEX NO. 030709/2023 FILED: ROCKLAND COUNTY CLERK 11/01/2023 03:14 PM NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 11/01/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND eee een e ee eee eee eee eee eee eee eee e een ene eenenee 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. eee een e ee eee eee eee eee eee eee eee e een ene eenenee 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 Y ork November 1, 2023 Very truly yours, CONDON PAXOS PLLC By Pret feKe CAM In A AA Cn Brian K. Condon Attorneys for Plaintiff 55 Old Tumpike Road, Suite 502 Nanuet, New Y ork10954 (845) 627-8500 (telephone) Brian@ CondonPaxos.com To: Via NY SCEF 1 of 6 INDEX NO. 030709/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/01/2023 SUPREME COURT: STATE OF NEW YORK COUNTY OF ROCKLAND 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. 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 square purchase of a 118,500 foot commercial shopping in Hudson, plaza commonly New York, 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.! 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; +The first cause of against Defendant Greenport action as 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 2 of 5 INDEX NO. 030709/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/01/2023 Plaintiff’s Affidavit in Opposition and Exhibits A through I submitted therewith and Memorandum of Law in Opposition; and 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 the of 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 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, 2In the Lease, “Purchaser” refers to Plaintiff herein; “Seller” refers Defendant Greenport herein. Page 2 of 5 2 of 5 INDEX NO. 030709/2023 NYSCEF DOC. NO. 50 RECEIVED 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. IE 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 rentpayments, 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 shallalso 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: TZ. Survival of Representations. All representations, warranties and agreements Page 3 of 5 3 of 5 a (FILED: ROCKLAND COUNTY CLERK 11/01/2023 2:03 PM INDEX NO. 030709/2023 — NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 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. rn 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.¥.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 complaint Plaintiff’s fails to state a cause of action, it is that well settled “[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 ” Delric Constr. Co., v within any cognizable legal theory. Ine. New York City Sch. Constr. Auth., 204 A.D.3d 750, 781-7152 (2d Dept. 2022) (Internal quotations and citations omitted). In addition, where, as here, “evidentia ry 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 " Id. at 752 exists regarding it, dismissal should not eventuate. (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 5 of 5 INDEX NO. 030709/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 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. Dated: October New City, 4, 2023 New York C, HON.) ROLF M. THORSEN Acting Supreme Court Justice TO: NYSCEF Page 5 of 5 5 of 5