Matters

All Claims Dismissed in Litigation over Title Agent’s Theft of Escrow Funds

Obtained summary judgment dismissing all claims against a title insurance company in litigation seeking to hold the insurer responsible for its title agent’s theft of escrow funds at the closing on the sale of a New York City building.  In a decision of potentially great import to the title insurance industry, a New York County Supreme Court held that a title insurance underwriter cannot be held responsible for the escrow functions of its limited agent when the escrows are unrelated to the issuance of a title insurance policy.

Developer – Successful Defense in Breach of Contract and Fraud Dispute

Herrick successfully defended Muss Development in the Appellate Division, First Department appeal of Princes Point LLC, et al. v. Muss Development LLC et al., a case involving the plaintiffs' breach of a $36 million contract to purchase Princes Point, a 23-acre waterfront parcel of land on the south shore of Staten Island, from Muss. The First Department unanimously confirmed Herrick's earlier Supreme Court, New York County victory for Muss, which entitles the real estate developer to retain the plaintiffs' approximately $4 million deposit plus other fees totaling nearly $1 million. In doing so, the court delved into an area where there was a dearth of case law in New York – namely, whether a prospective real estate purchaser anticipatorily breaches a sale contract by commencing an action against the seller for rescission before the closing date, and whether, in that event, the seller is required to show that it was ready, willing, and able to complete the sale. The court held that the plaintiff had anticipatorily breached the contract and that Muss is entitled to keep the deposit and other significant fees without having to show that it was ready, willing and able to close. Once there was a breach , there was no need to spend time and money preparing for a closing that was not going to happen.

Brooklyn Bridge Park Developers – Dismissal of Lawsuits Seeking to Halt Construction

Successfully defended the developers of a $320 million Brooklyn Bridge Park hotel and condominium project, defeating two lawsuits filed by activists seeking to halt construction of the project.  In a decision of significance to the New York real estate industry, Herrick secured an order in New York state court denying plaintiffs’ motions for both an injunction and a declaratory judgment that the planned buildings exceeded height limitations specified in the project’s governing documents.  The court found that the development complied with the law and further ruled the legal challenge barred by the statute of limitations for bringing an Article 78 proceeding.   Herrick then defeated a second lawsuit claiming to assert a different land use violation, securing dismissal of the complaint on the grounds of failure to exhaust administrative remedies, statute of limitations and res judicata.  Herrick continues to represent the clients on the plaintiffs’ appeals of both decisions.

Title Insurance Company/Property Owner – Restrictive Covenant Dispute

Representing the owner of a vacant parcel of land in Westchester County, New York in a dispute with neighboring property owners over our client's plans to construct an affordable housing complex on the property. Relying on a century-old restrictive covenant contained in a prior deed which prohibited development of a "tenement or flat-house" on the property, the neighboring property owners are attempting to block our client's planned development of the land. Herrick is defending the owner's right to develop the property, arguing that the planned modern day apartment complex is not a "tenement or flat-house" within the meaning of the restrictive covenant and, in any event, the restrictive covenant is unenforceable.

Educational Institution – Breach of Contract Dispute

Representing a provider of educational programs in a breach of contract dispute with a local college over the termination of an agreement that allowed the two educational institutions to collaborate. 

Global Food Manufacturer – Breach of Contract Dispute with Equipment Supplier

Represented a global food manufacturer in a dispute with an equipment supplier and its parts manufacturers over the defendants' failure to deliver a complete packaging line pursuant to the terms of a written contract. Litigation includes claims for breach of contract, fraud and negligent misrepresentation.

Lender/Title Insurance – NY Supreme and Appellate Division Victory

Obtained reversal of a New York Supreme Court ruling finding that the deed transferring title to a property was void ab initio. Our client, a lender with a first priority mortgage lien on the property, had not been named as a party in the underlying action, but was sued in a subsequent action filed by plaintiffs seeking to use the ruling to extinguish our client's $2.5 million lien on the property. We successfully intervened in the underlying lawsuit on behalf of the lender and argued that the Judge's original ruling -- finding that the deed was void ab initio -- was incorrect as a matter of law. The Judge agreed, vacated her own prior order and reinstated clean title in the mortgagor. The ruling was subsequently affirmed on appeal by the Appellate Division, First Department.