Matters

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 – Motion for Preliminary Injunction Denied

Herrick successfully defended the developers of a $320 million Brooklyn Bridge Park hotel and condominium project, winning a decision of particular significance to the New York real estate industry as it held that the four-month statute of limitations for challenging administrative determinations cannot be circumvented by couching a complaint as a declaratory judgment action. In a bid to halt the project’s construction, activists filed suit against our clients in New York state court, seeking both an injunction and a declaratory judgment from the court that the planned buildings exceeded height limitations specified in the governing documents for the project. The court denied the motions in their entirety, ruling that the development complied with the law, and further finding that the legal challenge was barred by the statute of limitations for bringing an Article 78 proceeding. A contrary ruling would have paved the way for legal challenges to be made long after government approvals have been obtained for a development project.

In addition to representing our clients on the plaintiffs’ appeal, Herrick is also representing the developers in a new suit filed by activists, now alleging that the project violates a “scenic view district” regulation. Here, we have defeated a motion for a temporary restraining order and are awaiting a ruling on the plaintiffs’ motion for a preliminary injunction. In the meantime, construction on the project continues.

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.

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.