Matters

Community Preservation Corporation – Real Estate Litigation

Outside counsel to CPC, a leading provider of capital for affordable housing in New York state, in numerous foreclosure actions, many involving stalled condominium development projects that are resolved through litigation or loan workouts.

Durst Fetner Residential Business Divorce

Represented Fetner in business divorce negotiations, and the buyout of the Durst family’s interests in the luxury rental building Epic, on West 31 st Street in Manhattan. The transaction was part of a $740 million business divorce between the Fetner and Durst families, the details of which were reported in the April 11, 2016 Wall Street Journal article “How Two New York Real-Estate Families Parted With Grace.”

Mezzanine Lenders – Stuyvesant Town-Peter Cooper Village Litigation

Herrick and co-counsel successfully represented junior lenders in litigation related to the foreclosure of Stuyvesant Town-Peter Cooper Village, Manhattan's largest housing complex, which our clients alleged was based on a flawed premise, designed to provide an unjust windfall of approximately $1 billion to the defendants at the expense of junior lenders. This litigation, fought primarily in New York state court, was ultimately settled in an agreement that resolved all claims between the parties and helped clear the way for a future sale of the complex.

Fashion Designer – Flagship Manhattan Store Leasing Dispute

Working with co-counsel, Herrick obtained a number of favorable rulings involving millions of dollars on behalf of a leading fashion designer as plaintiff in litigation with the landlord of its flagship Manhattan retail location. Prior to reaching a settlement, victories on behalf of the client included a ruling enjoining the landlord from terminating our client’s lease, an order that our client continue paying the current rent under the lease rather than the much higher amount requested by the landlord, and a decision rejecting the landlord's motion for our client to post an $83 million bond “for lost opportunity damages” related to plans to demolish and redevelop the site, and instead requiring a bond of only $750,000. The dispute was resolved in a settlement, pursuant to which the client obtained a new, long-term lease.

Real Estate Investor – Successful Prosecution of Breach of Contract of Sale Agreement

Achieved a significant victory on behalf of a major New York City real estate investor in a breach of contract dispute with the would-be-buyer of five of our client's multiple-dwelling residential properties, who breached a contract of sale between the parties by failing to fully pay the agreed upon down payment as required in the agreement. The court granted our motion for partial summary judgment, striking the defendant's affirmative defenses, denying the defendant's cross motion for leave to amend its answer to interpose counterclaims, and ordering the defendant to pay $850,000 in damages, plus interest, to our client.

Affordable Housing Lender – Foreclosure of $17.5 Million in Mortgages Secured by Brooklyn Condominium Project

Herrick represented a major NYC affordable housing lender in hotly contested litigation to foreclose on more than $17.5 million in mortgages secured by a stalled condominium project located in Clinton Hill, Brooklyn. Brought in by the client as replacement counsel, Herrick secured the appointment of a receiver to take control of the property, shut down lender liability claims raised by the borrowers in both the underlying foreclosure action and a parallel action filed in another court, and then succeeded in obtaining a final judgment of foreclosure and sale. When the borrowers filed for bankruptcy in an effort to derail the sale, we won a judgment allowing the receiver to remain in place while we moved to lift the automatic stay blocking continuance of the foreclosure proceedings. Having brought the foreclosure action to the brink of completion, Herrick positioned our client to successfully sell the note and mortgage to a developer, releasing our client from this litigation.

Lender and Special Servicer – $126 Million Mortgage on Miami’s Shore Club Hotel

Represented the lender and mortgage servicer in litigation against a hotel developer filed in Nassau County Supreme Court and in the Appellate Division, Second Department. The underlying dispute involved an action filed by our clients in Florida seeking to foreclose the $126 million mortgage on the Shore Club Hotel in Miami, and the hotel developer's ultimately unsuccessful attempts to derail that action. Having slipped a purchase option into a hotel tenant's lease, which purported to convey to the tenant a right to purchase the mortgage loan at fair market value, the developer then "purchased" the option from the tenant and sought to enforce that option in the Florida foreclosure action. On the eve of an expected adverse ruling in Florida, the developer brought its claim to Nassau County, where the trial court granted a preliminary injunction, effectively preventing our clients from foreclosing the mortgage. We filed an appeal and obtained a reversal, resulting in the dismissal of the Nassau County action. Leave to appeal was denied by New York's Court of Appeals.

Distressed Real Estate Investor – Acquisition and Foreclosure on $5.7 Million in Loans Secured by Manhattan Property

Herrick advised the distressed real estate investment arm of a global financial services firm on the acquisition of loans totaling $5.7 million and secured by a new real estate development project located in the Washington Heights section of Manhattan. Following the acquisition of the loans, which were in default, Herrick successfully represented the client in a foreclosure action challenged at the last hour by an entity directly tied to the borrower which claimed to hold a $1 million mechanic's lien against the property. Herrick was able to swiftly put a receiver in place and then secured a final judgment of foreclosure and sale within months of first filing the action. An auction is currently scheduled.

Real Estate Developers – Summary Judgment in Litigation over Recourse Provision in Mezzanine Loan Guaranty

Defense of the guarantors of a multimillion dollar mezzanine loan secured for the development of several Florida condominium projects in an action filed by the lender in New York federal court. Seeking the full outstanding balance of the loan with interest, an amount totaling nearly $190 million, the lender claimed that certain transfers out of an escrow account holding condominium purchasers’ deposits triggered a full recourse provision in the guaranty. Herrick successfully argued that the full recourse provision of the guaranty was never triggered, obtaining a ruling granting our motion for summary judgment and dismissing all claims against our clients.

Bushwick Property Acquisition and Development

Represented Royalton Capital on the acquisition of a three-acre industrial site in Bushwick, Brooklyn. The deal included the structuring of two joint ventures and financing from AllianceBernstein. Plans are to develop the property into a mixed-use office, retail and restaurant space.

Suffolk Golf Club Acquisition

Represented a Long Island developer on a complex acquisition of a large golf club in Suffolk County which required sophisticated financing and litigation to assist them in gaining control of the property for redevelopment as multi-family.

Property Owners – Dismissal of Action Seeking Specific Performance

Herrick successfully argued for the dismissal of claims for breach of contract and specific performance filed by plaintiffs following our client's termination of a contract for the sale of real property located in Brooklyn, New York. Agreeing that the plaintiffs had failed to satisfy a critical mortgage contingency requirement under the contract, the court dismissed the complaint in its entirety. Plaintiffs' appeal of the decision to the appellate division was also successfully rebuffed.

Lender – Times Square Hotel Enforcement Action

Represented the lender of a $65 million loan to fund the acquisition of a Times Square area hotel following the alleged breach of a provision in the loan agreement requiring that a restaurant tenant servicing the hotel be opened to the public by a specific date. This litigation was ultimately settled favorably after hard fought litigation.

Property Owners – Real Estate Brokerage Dispute

Represented property owners in litigation and negotiated settlement arising from a real estate broker's alleged breach of fiduciary duty while acting on our clients' behalf to broker four properties located in New York City's East Village and Lower East Side.

Private Equity Fund – Temporary Forbearance Agreements

Represented a private equity fund in several temporary forbearance agreements with respect to loans secured by real property in Las Vegas, Nevada.

JP Morgan Chase – Fraud Litigation Victory

Represented JP Morgan Chase in a suit brought by a borrower's principal and guarantors alleging that our client had impermissibly drawn down on a letter of credit provided as a security for a loan on a piece of property in Harlem. Herrick won summary judgment and the borrower appealed. The First Department affirmed the lower court's dismissal of the complaint. The decision clears the way for the ultimate foreclosure of the property.

National Black Theatre – Real Estate Litigation Victory

Representation of the National Black Theatre in winning summary judgment against its partner Nubian properties in a real estate breach-of-contract suit involving National Black Theatre's landmark headquarters at the corner of 125th Street and 5th Avenue in Harlem, also known as "National Black Theatre Way."

Samsung New York Real Estate Development

Represented Samsung Corporation in connection with a mixed-use real estate development in the New York region. We worked closely with Samsung’s executive and due diligence team in negotiating the purchase and key documents, completing the due diligence and locating a local developer partner in the U.S.

R.I. Island House LLC v. North Town Phase II Houses, Inc. – Mitchell Lama Contract Dispute

Representation of a major developer in enforcing a $100 million contract to sell a Mitchell Lama project on Roosevelt Island, New York. The trial court dismissed our complaint, but the Second Department, relying on our legal arguments, reversed the lower court and permitted the claim for specific performance to move forward. (R.I. Island House LLC v. North Town Phase II Houses, Inc. (2nd Dep't, May 2008)).

IBE Trade v. Litvinenko – International Litigation Over Privatization

Represented IBE Trade, an international manufacturer and trader of fertilizers, in a complicated case involving the theft by an employee of an entire factory. IBE Trade purchased the factory from the Bulgarian government as part of a privatization program. An IBE employee named Litvinenko then conspired with rogue elements in Bulgaria to fraudulently seize control of the plant, stripping IBE of its ownership interest.

Herrick sued Litvinenko in New York and, after a several-week trial, the trial court ruled in IBE's favor, ordering him to return of control of the plant to IBE and to pay $11 million in damages. Litvinenko refused to comply and was jailed for contempt, remaining incarcerated for over a year and half. Numerous appeals ensued and all, including the incarceration for contempt, were ultimately upheld.

(IBE Trade Corp. v. Litvinenko, 288 A.D.2d 125, 733 N.Y.S.2d 161 (1st Dept. 2001)(Affirming finding of contempt); People ex rel. Kuby v. Warden, Brooklyn House of Detention, 305 A.D.2nd 339, 757 N.Y.S.2d 889 (2nd Dept. 2003)(Refusing to release Litvinenko from incarceration after over a year in jail); IBE Trade Corp. v. Litvinenko, 298 A.D.2d 285, 748 N.Y.S.2d 741 (1st Dept. 2002)(Affirming post-trial decision and judgment awarding ownership); IBE Trade Corp. v. Litvinenko, 835 N.Y.S.2d 557 (1st Dept. 2007)(Affirming $11 million judgment).

Iqbal v. Five M. LLC – Finger Building Dispute

Representation of Iqbal LLC in a hard-fought and much-publicized battle between developers over the controversial "Finger Building" in Williamsburg, Brooklyn. Herrick won a decisive victory, forcing the defendants to reduce the size of their proposed building by six stories in height -- a major victory that tipped the balance in that litigation. (Iqbal v. Five M. LLC (Slip Op. Kings Co. 2007))

Creative Kids Enrichment, LLC v. Yorktown Office Warehouse, LLC – Lease Dispute

Representation of a commercial tenant in an action against its landlord seeking damages for the landlord’s failure to comply with a lease provision requiring completion of the building by a date certain. Herrick successfully prosecuted the litigation, and defended and argued an appeal, with the client ultimately winning both that appeal and the trial seeking lost profits and other extensive damages. (Creative Kids Enrichment, LLC v. Yorktown Office Warehouse, LLC, 838 N.Y.S.2d 149 (2nd Dep’t 2007))

RM 14 FK Corp. v. Bank One Trust Company – K-Mart Mortgage Dispute Appeal

Representation of a title insurer in its appeal of a trial court’s decision permitting a litigant to proceed with its claim seeking to void $30 million in mortgages encumbering 14 K-Mart stores throughout the US. The Appellate Division unanimously reversed the lower court, granting summary judgment for our client. (RM 14 FK Corp. v. Bank One Trust Company, 831 N.Y.S.2d 120 (1st Dept. 2007))

Bain v. Silverpoint – International Finance Dispute

Represented the owner of an Estonian galvanized steel plant known as Galvex in his dispute with Silverpoint, a hedge fund. The owner sued Silverpoint for breach of an agreement permitting the owner to sell or restructure the plant's debt, and promising to pay the owner millions of dollars. Silverpoint moved to dismiss the case on jurisdictional and forum non conveniens grounds, but Herrick defeated the motion and the litigation proceeded to a satisfactory conclusion in New York. (Bain v. Silverpoint (Slip Op. N.Y. Co. 2007))

Severodonetsk Azot – Stopping Improper Government Seizure of Privatized Plant in Ukraine

Representation of a U.S.-based chemical company in a hard-fought dispute over the massive chemical plant, Severodonetsk Azot, in Eastern Ukraine. Corrupt political forces in Ukraine took control of our client’s plant through the commencement of a bogus lawsuit in Kiev and the outright seizure of the plant by a private militia. Herrick argued an appeal in Kiev’s court of appeals and also met, in Kiev, with Ukrainian ministries and the U.S. Embassy as part of a concerted effort to exert political pressure on the Ukrainian government to end the illegal actions.

As part of these efforts, Herrick alerted the New York Times to situation and the Times, in investigating the story, uncovered that the political dispute over the Severodonetsk Azot plant had led to Ukrainian President Yushchenko dismissing his prime minister and the rest of her government. See Deal for Ukraine Company Renews Charges of Abuse (The New York Times, Sept. 15 2005). The Ukrainian Supreme Court ultimately reversed the Kiev court and upheld our client’s ownership of the plant.

Nedagro B.V. v. Zao Konversbank – Enforcement of Foreign Arbitration Award

Representation of a Dutch agricultural company in successfully pursuing enforcement of an international arbitration award under the New York Convention. (Nedagro B.V. v. Zao Konversbank, 23 U.S. Dist. Lexis 787 (S.D.N.Y. 2003))

United States Fidelity and Guaranty v. Madison Financial – Defeat of Class Action

Representation of a financial institution in fending off an attempt by a surety to turn a simple lien law claim into a class-action lawsuit. (United States Fidelity and Guaranty v. Madison Financial, 2002 U.S.Dist. Lexis 23374 (S.D.N.Y. 2002))

Base Metal Trading S.A. v. Russian Aluminum – Battle Between Russian Oligarchs

When Russia's famous "Aluminum Wars" reached U.S. shores, Herrick represented of one of the plaintiff groups in U.S. Federal court litigation against entities controlled by Russian oligarchs Oleg Deripaska and Mikhail Chernoy. (Base Metal Trading S.A. v. Russian Aluminum. 2002 U.S. Dist. Lexis 8516 (S.D.N.Y. 2002))

Gartner v. Lowe – Dispute Over Contract of Sale

Representation of the seller of a building off Fifth Avenue in Manhattan in defending an action for specific performance of the contract of sale. After winning at trial, Herrick also defended and argued the appeal, with the First Department unanimously upholding the trial court decision. (Gartner v. Lowe, 749 N.Y.S.2d 134 (1st Dept. 2002))

Japanese Mortgage Restructuring and Asian Property Acquisitions

Represented a Japanese company in negotiations held in Tokyo with UFJ Bank to restructure $30 million in mortgage debt encumbering property in Tokyo. We then represented a Japanese joint venture involving the company in its purchase and mixed-use development of a property in the Kakinokizaka district of Tokyo and in the purchase of property on Yao Yai Island near Phuket, Thailand.

Ward v. Helmsley – Employment/Real Estate Litigation

Representation of the former COO of Helmsley Enterprises in a suit against Leona Helmsley related to an improper firing, breach of an agreement to sell 60 coop apartment units, and breach of a confidentiality agreement. This litigation received intensive publicity, with a front-page article in The Wall Street Journal, and articles in the New York Post and New York Daily News. Lead counsel Ray Hannigan was interviewed on Fox News and was a frequent "Boldface Name" in the New York Times. See Boldface Names, The New York Times (July 24, 2002).

Nihon Sangyo Kabushiki Kaisha v. Nakahara – Empire State Building Battle

Representation of Hideki Yokoi, a famous Japanese billionaire, in the celebrated battle for control of the Empire State Building. The tycoon sued his daughter, Kiiko Nakahara, and her husband, accusing the couple of improperly taking ownership and control of nine chateaux in France, four castles in Great Britain, Oheka Castle on Long Island, and the Empire State Building. The case was the subject of a front-page expose in The Wall Street Journal and is chronicled extensively in Mitchell Pacelle's book, Empire; A Tale Of Obsession, Betrayal And The Battle For An American Icon, Wiley, 2001.

Herrick represented the Trump Organization in the historic sale of the Empire State Building to a group led by Peter Malkin. That deal garnered headlines of its own: "Partnership in Deal for Empire State Building," The New York Times, March 19, 2002; "Long, Long Legal Battle for Tall, Tall Building," The New York Times, December 12, 2001.

In Re 455 CPW Associates – Mortgage/Mechanic’s Lien Priority Dispute

Representation of a title insurance company in its defense of a mortgage lender from Section 22 claims made by a mechanic lienor, in Bankruptcy Court, asserting that its lien took priority over an earlier filed mortgage. The Bankruptcy Court ruled in our client’s favor and both the District Court and the Second Circuit affirmed. (In Re 455 CPW Associates; Herbert Construction v. The Greater New York Savings Bank, 192 B.R. 85 (Bank. S.D.N.Y. 1996), aff. 2000 U.S. App. Lexis 23470 (2d Cir. 2000))

Nakahara v. Bal – Dismissal of RICO Action

Representation of Hideki Yokoi, a Japanese real estate magnate, in obtaining the dismissal of a RICO "slap suit" brought by his daughter, Kiiko Nakahara, and her husband, John Paul Renoir. The couple brought the suit against Yokoi as part of their effort to force him to stop his worldwide litigation against the couple over the ownership of nine chateaux in France, four castles in England, Oheka Castle on Long Island and the Empire State Building in New York. (Nakahara v. Bal, 1998 U.S. Dist. Lexis (S.D.N.Y. 1998))

Turning the tables, Herrick later worked with local Federal prosecutors to have Renoir arrested on an Interpol warrant and extradited to France to face charges there in connection with ongoing criminal proceedings. See Suspect in Fraud Extradited to France, The New York Times (March 28, 2000).

Congregation Yetv Lev D’Satmar, Inc. v. 26 Adar N.B. Corp. – Religious Corporations/Title Dispute

Appearance as amicus curiae on behalf of the New York State Land Title Association in an important appeal involving issues under New York's Religious Corporations law.  Congregation Yetev Lev D'Satmar, Inc. v. 26 Adar N.B. Corp., 641 N.Y.S.2d 680 (2nd Dep't 1996)