Opinion
Index No. 850083/2020 Motion Seq. No. 007
06-16-2023
MALAYAN BANKING BERHAD, NEW YORK BRANCH, INTESA SANPAOLO S.P.A., NEW YORK BRANCH, WARBA BANK K.S.C.P., 45 PARK PLACE INVESTMENTS, LLC, Plaintiff, v. PARK PLACE DEVELOPMENT PRIMARY LLC, PARK PLACE PARTNERS DEVELOPMENT LLC, 45 PARK PLACE PARTNERS, LLC, SOHO PROPERTIES GENERAL PARTNER, LLC, SHARIF EL-GAMAL, STATE OF NEW YORK CIVIL RECOVERIES BUREAU, GILBANE RESIDENTIAL CONSTRUCTION LLC, U.S. CRANE & RIGGING LLC, CONSTRUCTION REALTY SAFETY GROUP INC., TRADE OFF PLUS, LLC, ALL-CITY METAL INC. PERMASTEELISA NORTH AMERICA CORP., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, TRANSCONTINENTAL STEEL CORP., ISMAEL LEYVA ARCHITECT, PC., PERI FORMWORK SYSTEMS, INC..ULE GROUP CORP. D/B/A UNITED LIGHTING ELECTRICAL CORP., S&E BRIDGE & SCAFFOLD LLC, JOHN DOES 1-100, SOHO PROPERTIES INC., THE PACECOMPANNIES NEWYROK, INC., PEAK MECHANICAL SOLUTIONS, INC.,MEN OF STEEL REBAR FABRICATORS, LLC, GOTHAM DRYWALL, INC. TRANSCONTINENTAL STEEL CORP., ISMAEL LEYVA ARCHITECT, PC, PERI FORMWORK SYSTEMS, INC. ULE GROUP CORP. D/B/A UNITED LIGHTING ELECTRICAL CORP., S&E BRIDGE & SCAFFOLD LLC, Defendant.
Unpublished Opinion
PRESENT: HON. FRANCIS A. KAHN, III Justice
DECISION + ORDER ON MOTION
FRANCIS KAHN, III, A.J.S.C. .
The following e-filed documents, listed by NYSCEF document number (Motion 007) 674, 675, 676, 677, 678, 679, 680, 681, 682, 683, 684, 685, 686, 687, 688, 689, 690, 691, 692, 693, 694, 695, 696, 697, 698, 699, 700, 701, 702, 703, 704, 705, 706, 707, 708, 709, 710, 711, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742, 743, 744, 745, 746, 747, 748, 749, 750, 751, 752, 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 763, 764, 765, 766, 767, 768, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, 788, 789, 790, 791, 792, 793, 798, 799, 800, 801, 802, 809, 810, 811, 812, 813, 814, 815, 816, 817, 818, 819, 820 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motion is determined as follows:
The facts and procedural status of this case was described in this Court's decision dated November 18, 2022 (NYSCEF Doc No. 794). In that decision, the branches of Plaintiff s motion for summary judgment against the Lienor Defendants and for an order of reference were denied. The Court determined, inter alia, that the proffered affidavit from Ahmad Hamdi Bin Abdullah was insufficient to establish, prima facie, entitlement to summary judgment on the cause of action for foreclosure. On the same day the Court rendered its decision, Plaintiff filed the within motion (MS #7) for, inter alia, summary judgment against the Borrower and Guarantor Defendants, dismissal of their affirmative defenses and counterclaims, appointing a referee to compute and to amend the caption. After issuance of the above decision, Plaintiff withdrew all the branches of the motion except those seeking dismissal of the counterclaims and amendment of the caption (NYSCEF Do No. 800).
As to the counterclaims, on a motion pursuant to CPLR §3211 [a][7], the allegations contained in the pleading must be presumed to be true, liberally construed and a plaintiff must be accorded every possible favorable inference (see eg Chanko v American Broadcasting Cos. Inc., 27 N.Y.3d 46 [2016]; M & E 73-75, LLC v 57 Fusion LLC, 189 A.D.3d 1, 5 [1st Dept 2020]). In determining such a motion, "the sole criterion is whether the pleading states a cause of action, and if from its four comers factual allegations are discerned which taken together manifest any cause of action cognizable at law" (298 Humboldt, LLC, v Torres, 197 A.D.3d 1081, 1083 [2d Dept 2021], quoting Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]). In certain situations, however, the presumption falls away when bare legal conclusions and factual claims contained in the complaint are flatly contradicted by evidence submitted by the Defendant (see Guggenheimer, supra; Kantrowitz & Goldhamer, P.C. v Geller, 265 A.D.2d 529 [2d Dept 1999]). When in the uncommon circumstance the evidence reaches this threshold (see Lawrence v Miller, 11 N.Y.3d 588, 595 [2008]), the court "must determine whether the proponent of the pleading has a cause of action, not whether she has stated one" (Kantrowitz & Goldhamer, P. C. v Geller, supra; see also Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635-636 [1976]).
The first counterclaim alleged breach of contract by Plaintiffs and seeks monetary damages for same. As a rule, a cause of action for breach of contract is stated by pleading "the existence of a contract, the Plaintiffs performance thereunder, the Defendant's breach thereof, and resulting damages" (see Harris v Seward Park Hous. Corp., 79 A.D.3d 425, 426 [1st Dept 2010]). Here, Defendants pled that the Administrative Agent was responsible for their loan default by unjustifiably withholding financing which in turn caused Lienor Defendants to cease work on the project resulting in their default. As pled, this counterclaim states a claim for breach of contract (see Amalgamated Bank v Fort Tryon Tower SPE LLC,___Misc3d___, 2011 NY Slip Op 33461 [U][Sup Ct NY Cty 2011]; see Morris v' 702 E. Fifth St. HDFC, 46 A.D.3d 478 [1st Dept 2007]).
Contrary to Plaintiffs assertion, Borrower Defendants sufficiently allege the provisions upon which liability is predicated. When the affidavit in opposition of Sharif El-Gamal, a Member of Defendant Park Place Development Primary LLC, is considered, as the Court must in this context, Borrower has properly pled that Plaintiffs "wrongfully" and "unlawfully" rejected as many as 19 proper funding requests from Borrower (see Gateway II LLC v Hartford Fire Ins. Co.,___Misc3d___, 2014 NY Slip Op 32483[U][Sup Ct NY Cty 2014]). A review of the Building Facility Agreement reveals that determination of whether Borrower satisfied the contractual conditions precedent to be entitled to Facility distributions, the Administrative Agent's discretion in granting approval must be exercised "reasonably" (Building Facility Agreement, Sections 10.1, 11.4, 12.1). By alleging Plaintiffs acted wrongfully and unlawfully, Borrowers have plainly stated the Administrative Agent's actions in the regard were not reasonable. Plaintiffs reliance on the notification provision in section 21.15 of the Facility Agreements is unavailing as compliance with a contractual condition precedent is not required' to be pled (CPLR §3015[a]).
In the end, "[w]hether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [its] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Shaya B. Pac, LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38 [2d Dept 2006]).
However, the second counterclaim, based on an alleged breach of the implied covenant of good faith and fair dealing, is improperly duplicative of the breach of contract counterclaim (see eg City of New Yorkv611 West 152nd St., Inc., 273 A.D.2d 125 [1st Dept 2000]; Sky Coverage v Alwex Inc., 194 A.D.3d 587 [1st Dept 2016]). Likewise, the third counterclaim fails for the same reason (see Ness Tech. S.A.R.L. v Pactera Tech. Intl. Ltd., 173 A.D.3d 635 [1st Dept 2019]).
The branch of Plaintiff s motion to amend the caption is granted (see generally CPLR §3025; JP Morgan Chase Bank, N.A. v Laszio, 169 A.D.3d 885, 887 [2d Dept 2019]). Defendants' opposition misconstrues the issue to be attended. Standing to bring a foreclosure action is measured when the action is commenced not thereafter (see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 360). This is i because when there is a transfer of any interest after an action is commenced, either the assignor or assignee may continue to prosecute or defend the action with or without formal substitution (see CPLR > §1018; Wells Fargo Bank, NA v McKenzie, 183 A.D.3d 574 [2d Dept 2020]; B & H Fla. Notes LLC v Ashkenazi, 149 A.D.3d 401 [1st Dept 2017]). In this case, Plaintiff demonstrated with the affidavit of Justin J. Santoli that Malayan Banking Berhad, New York Branch assigned its rights and obligations as Administrative Agent to MSD RCOF Partners XLIX, LLC. Thus, that party has the capacity to prosecute this action.
Accordingly, it is
ORDERED that the branch of Plaintiff s motion for summary judgment, to dismiss the affirmative defenses and counterclaims and to appoint of a referee to compute are withdrawn, and it is further
ORDERED that the branch of Plaintiff s motion to dismiss Borrower and Guarantor Defendants' counterclaims is granted only to the extent that the second and third are dismissed, and it is
ORDERED that the branch of the motion to amend the complaint is granted and the caption shall read as follows:
SUPREME COURT STATE OF NEW YORK COUNTY OF NEW YORK
MSD RCOF Partners XLIX, LLC, as Administrative Agent for MALAYAN BANKING BERHAD, LONDON BRANCH, INTESA SANPAOLO S.P.A., NEW YORK BRANCH, WARBA BANK K.S.C.P., and 45 PARK PLACE INVESTMENTS, LLC, Plaintiff
against
PARK PLACE DEVELOPMENT PRIMARY LLC, PARK PLACE PARTNERS DEVELOPMENT LLC, 45 PARK
PLACE PARTNERS, LLC, SOHO PROPERTIES GENERAL PARTNER, LLC, SHARIF EL-GAMAL, STATE OF NEW YORK CIVIL RECOVERIES BUREAU, GILBANE RESIDENTIAL CONSTRUCTION LLC, U.S. CRANE & RIGGING LLC, CONSTRUCTION REALTY SAFETY GROUP INC., TRADE OFF PLUS, LLC, ALL-CITY METAL INC., PERMASTEELISA NORTH AMERICA CORP., TRANSCONTINENTAL STEEL CORP., ISMAEL LEYVA ARCHITECT, P.C., PERI FORMWORK SYSTEMS, INC., ULE GROUP CORP. D/B/A UNITED LIGHTING ELECTRICAL CORP., S&E BRIDGE & SCAFFOLD LLC, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, and JOHN DOES 1-100, the last one hundred names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendants