Retailer – Leasing Dispute
Represented a children’s retailer in a suit brought by the Metropolitan Transit Authority (MTA) for back rent and future rent (with personal liability) of almost half a million dollars on its lease at Grand Central Terminal. The Herrick team negotiated a favorable settlement on behalf of the client.
Commercial Landlord – Leasing Dispute with International Retailer
Herrick delivered a major victory to a commercial landlord against a billion-dollar international retailer with more than 500 stores worldwide. The retailer sought rescission of its lease based on claims of mutual mistake, breach of contract, breach of duty to cooperate and breach of implied covenant of good faith. The court denied the tenant's motion to amend its complaint to allege impossibility, frustration of performance, constructive eviction, as untimely. Herrick successfully showed that the landlord was not required to do the work for the tenant or to obtain all necessary permits. Herrick believed that the retailer's real motivation for abandoning the space was a corporate decision to open a larger store at a different location. The court found that the retailer failed to conduct proper due diligence as to the necessary certificate of occupancy, the tenant took the premises "as is" and the landlord made no representation to permitted uses. The court dismissed every one of the claims against the landlord. Furthermore, the court granted the landlord a judgment of over $13 million dollars for unpaid rent, plus interest and attorneys fees, bringing the total expected judgement to over $20 million dollars.
JMH Development – Dispute Over Luxury Residential Development
Herrick achieved a significant victory for JMH Development, the managing member in a joint venture created to develop a luxury residential development in Miami, Florida, in a dispute against PSB, the joint venture’s partner, who asserted false claims including breach of contract and fiduciary duty, among others. After a lengthy and contentious litigation culminating in a 3-day bench trial, the court ruled in favor of JMH Development on every single claim and issue and dismissed the case.
Wolf Haldenstein – Dispute with Manhattan Landlord
Achieved significant award for Herrick client, the highly-respected plaintiff's class action law firm Wolf Haldenstein Adler Freeman & Herz LLP, in a dispute with their Manhattan landlord. The landlord failed to properly renovate Wolf Haldenstein's office space as outlined in their lease agreement, thus leaving the office in an unsuitable condition for people to work in. The court affirmed that the landlord and its affiliates failed to properly renovate office space leased by Wolf Haldenstein and dismissed the landlord's counterclaim for allegedly owed back rent. The court also awarded Wolf Haldenstein attorney fees.
Represented a high net worth client in a very contentious dispute over a property they owned as tenants in common. We were able to settle the dispute with a buyout that was beneficial for both parties and allowed each party to go its separate way.
Real Estate Litigation and Hearing – Nonprofit Facility
Herrick represented PEY Realty LLC, which is an entity formed for the benefit of the Chabad Lubavitch of the West Side, in an arbitration against an affiliate of Sackman Enterprises. In 2017, PEY entered into a contract to purchase a $30m community facility condominium unit in a new building being developed on W 96th St. The condominium unit, 6 floors and a cellar, was intended to house the Chabad’s permanent operations, including all religious, educational, and community services. In connection with the contract, PEY tendered a multi-million dollar down payment. The project experienced years of construction delays. Once it became clear that litigation was imminent, each party called defaults under the contract. After a three-day hearing, The Herrick team was able to secure an award directing that the down payment be returned to PEY, together with a significant award in additional money damages, including the lion’s share of attorneys’ fees. The Chabad can finally put the down payment to a productive use and resume its efforts to find a permanent home.
Mitsui Fudosan and SJP Properties – 200 Amsterdam
Achieved significant victory in a high-profile, multi-year dispute over the approximately $1 billion dollar development at 200 Amsterdam—an important ruling for both Herrick clients and developers throughout New York City. Herrick represented Mitsui Fudosan and SJP Properties as co-counsel in the zoning litigation involving their development of the luxury high rise building when a neighborhood coalition of Upper West Side residents and politicians challenged the Department of Building's approval of the project and two approvals by the NYC Board of Standards and Appeals. The community groups argued that the developers created an illegal zoning lot - which was an unusual shape and utilized partial tax lots. In 2020, even though a N.Y.S. trial judge previously denied an injunction and held that the opponents failed to show a likelihood of success, the judge thereafter ordered that our clients deconstruct several floors of the already built same 52-story building. In March 2021, the N.Y.S. Appellate Division unanimously reversed and ruled in favor of the developers, finding that the building permit was lawful and that the trial court should have deferred to the N.Y.C. Board of Appeals. Opponents sought leave to appeal to the N.Y. Court of Appeals. In September 2021, the N.Y. Court of Appeals denied the opposition group’s motion for leave to appeal.
Chelsea Building Owner – Successful Enforcement of Surrender Agreement
Achieved a $1 million victory on behalf of a Chelsea building in an action to enforce the strict terms of a surrender agreement for prime retail space in Manhattan’s Chelsea neighborhood. On summary judgment, the Supreme Court, New York County, determined that a commercial tenant breached its contractual obligation to vacate our client’s prime, street level space, ordered the return of an unearned termination fee (including an $800,000 deposit in escrow and $200,000 cash advance), and awarded interest and attorneys’ fees.
Non-Profit Organization – Litigation against Former Board Members
Achieved an important victory on behalf of a non-profit pro-bono client asserting claims against several former board members who had used their positions of trust to loot the organization for their own personal gain by misappropriating funds from the client’s operating accounts, gaining control of the organization's Harlem apartment buildings, misappropriating rental income from those properties, and ultimately selling one of the buildings for their own benefit. Herrick successfully argued a motion for a preliminary injunction, obtaining an order from the court enjoining the defendants from holding themselves out as officers of the non-profit, and requiring them to return the organization’s apartment buildings to our client’s control.
Defending Challenge Construction of High-Rise Residential Tower
Represent owner/developer in the zoning for their development of Manhattan high rise residential condominium building, including opposing an effort to halt construction and a challenge to the project’s approval brought by local community groups.
REIT – Real Estate Litigation
Represented an affiliate of a leading REIT in winning summary judgment: (a) in an adverse possession action brought by the owners of adjacent property; and (b) in a separate real estate breach-of-contract suit arising out of an agreement sell property in Manhattan.
Defeated Zoning Challenge to Construction of Residential Tower
Successfully represented owner/developer of 32-story residential tower on Upper East Side in defeating zoning challenge and lawsuit brought by community groups and elected officials.
Successful Prosecution of Breach of Operating Agreement in Real Estate Partnership
Represent international real estate investment firm in dispute with partner/co-owner of commercial building on Upper West Side over a contractually-negotiated share of leasing proceeds. On summary judgment, Court awarded all monetary relief demanded and declaratory relief in client’s favor.
Zoning Resolution Dispute With Developer
Represent ground lessor in action to enforce and declare consent rights as “party-in-interest” under New York City Zoning Resolution in dispute with developer planning to construct residential tower in the “Two Bridges” neighborhood of Manhattan.
Commercial Real Estate Tenants – Pre-Discovery Summary Judgment Ruling Granting Specific Performance of Lease with Purchase Option
Represented Split Rail Holdings, LLC, tenants of a commercial real estate building in the Lower East Side and secured a victory on a pre-discovery summary judgment motion, obtaining specific performance of the lease, allowing Split Rail to purchase the property for $6.3 million. The decision was affirmed by the Appellate Division, First Department.
Luxury Residential Developer – Dispute with Investor
Representing the management company of a real estate joint venture, created to develop luxury residential properties in Miami, against claims asserted by a joint venture investor.
Real Estate Lender – Foreclosure Proceedings
Represent a New York-based lender, who provides loans to revitalize and recapitalize commercial real estate properties, in foreclosure and deficiency proceedings.
Leading Special Servicers of CMBS Debt – New Jersey Real Estate Dispute
Representing four (4) leading special servicers of CMBS debt in connection with 18 defaulted loans secured by multi-family apartment buildings located throughout New Jersey. When the principal of the borrowers abandoned the properties, Herrick applied in federal court for appointment of a receiver to manage the properties. That application was successful, and a receiver was appointed. Once the receiver was in place, Herrick then commenced foreclosure actions in state court with respect to all of the 18 loans. Judgments have been obtained in all of the foreclosure actions and over the last year, the Herrick team has utilized a number of creative strategies to pursue the clients’ interests, including facilitating the sales of a number of the properties through the receivership (with the clients receiving the proceeds of such sales), and pursuing title to the balance of the properties through foreclosures sales. This matter is ongoing.
New Jersey-based Food Manufacturer – Leasing Dispute
Representing a New Jersey-based food manufacturer in an action brought against its landlord on a commercial lease for its warehouse at in Franklin Township, New Jersey. Our client seeks damages caused by breaches of various provisions in the lease related to the preparation of the previously-vacant building for occupancy and the build out of office space in the warehouse. The landlord filed a counterclaim asserting that our client breached the lease by applying a purportedly defective coating on the warehouse floor, and also seeking attorney’s fees and unspecified indemnification costs. This matter is ongoing.
New Jersey-based Nursing Home Facility – Leasing Dispute
Represented the defendants in a dispute where the parties had contracted for a long-term lease of a nursing home facility, representing several million dollars of rent. After our clients ultimately decided not to move forward with the lease, they negotiated a settlement that included a general release with the owner of the facility. Notwithstanding that, the facility owner subsequently filed suit in the Superior Court of New Jersey for eight separate causes of action, including breach of contract, tortious interference, and fraud in the inducement. In its complaint, the plaintiff also argued that the release was unenforceable because it was procured by economic duress. Herrick filed a motion to dismiss, arguing that the plaintiff did not plead the existence of economic duress at the level necessary to set aside the release. The court agreed with Herrick, dismissed the complaint without prejudice, and ordered that any refiled complaint contain specific facts with respect to the exact nature and extent of the economic duress at the time the release was given. This was a major victory in that there are very few New Jersey cases where a release has been enforced on a motion dismiss in the face of a claim of economic duress.
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 plaintiff's 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’ appeal.
Rent Stabilization Association – NYC Water Board Bill Credit Lawsuit
Represented the Rent Stabilization Association and individual building owners in high profile litigation challenging a proposal by New York City Water Board, and the New York City Department of Environmental Protection to subject landlords of large residential properties to a water bill rate hike in order to fund a one-time credit for the owners of smaller, one-to-three-family homes. In both the trial court, and before the Appellate Division, First Department, Herrick secured rulings blocking the levying of an estimated $76 million in rate hike charges which, we argued, would set a dangerous precedent of instituting arbitrary bill credits and rate hikes, made regardless of economic need and without any rational water-related purpose. Notwithstanding that we convinced two separate courts and a majority of the total judges that heard the case (6 out of 11, including the Chief Judge of the State’s highest court) of the merits of our position, a divided New York Court of Appeals overturned the lower court decisions and declared that the appellants may implement the bill credits and rate increase. Shortly after the decision was delivered, however, the appellants issued a public notice proposing to implement the bill credits, while repealing the planned rate increase. Accordingly, this case demonstrates that although it’s difficult to challenge the rationality of determinations by public agencies, even an ultimately unsuccessful legal challenge can cause public agencies to reexamine their conduct.
Developer – Dispute over Down Payment Favorably Resolved
Represented a real estate developer in litigation with the seller of a Midtown Manhattan property over the return of the client’s multimillion dollar down payment on the property after the seller materially breached a contract of sale between the parties by failing to cure violations at the property as required, refusing to allow our client access to the property in violation of the agreement, and improperly noticing a “time of the essence” closing. The dispute was resolved favorably under a settlement that recovered significant damages for the client.
International Residential Developer – Regulatory Investigations
Advising one of the world’s largest residential developers with respect to regulatory investigations relating to the removal of deed restrictions on a Manhattan property.
Special Servicer for $124 Million Mortgage Loan – Foreclosure and Ancillary Litigation
Representing the special servicer for a $124 million mortgage loan encumbering the Mall at the Source, a shopping center located in Westbury, New York. Herrick prosecuted a foreclosure action on the property to conclusion, obtaining a $145 million judgment against the property owner, and represented the client as the successful bidder at the foreclosure sale. The firm is also handling certain ancillary litigation relating to a purchase option held by our client on adjoining property, and obtained an appellate court decision that thwarted an attempt by the holder of a mortgage on the adjoining property from extinguishing the purchase option through foreclosure proceedings.
Appellate Win Reverses $9 Million Judgment against Buyers of Upper West Side Landmarked Property
Secured an important First Department win, reversing what was essentially a $9 million judgment against real estate developers in litigation against the seller of a landmarked property located on Manhattan’s Upper West Side. At issue was whether or not a $10 million “approval payment” beyond the $32 million contract purchase price payment was contingent upon the seller actually obtaining certain building approvals rather than merely applying for them. Herrick achieved a series of victories in the trial court, including pressuring the seller into withdrawing a default notice claiming our client had breached the terms of the contract, and securing the withdrawal of the seller’s initial counsel due to a conflict of interest, prior to the issuance of a potentially devastating decision that dismissed our client’s principal claims. We appealed to the Appellate Division, First Department, which unanimously reversed the ruling, finding that “the motion to dismiss should have been denied,” and that a reading of the contractual language determining that the seller was merely required to seek approvals rather than actually obtain them, “would render meaningless or absurd contractual terms regarding reduction of payment in the face of a failure to obtain the approvals.”
East Village Hotel Developer – Access Dispute with Adjacent Property Owner Favorably Resolved
Represented the developer of a 280-room hotel in Manhattan’s East Village as plaintiff in litigation with the owner of an adjacent property who had initially refused to grant critical access required to construct safety equipment and demolish a masonry structure that projected onto our client’s property. Threatened with carrying costs of over $500,000 for every month that the project was delayed as well as the prospect that the delay would interfere with the successful negotiations and cooperation achieved with the remaining adjacent landowners, our client sought a court order granting a license to access the defendant’s property. This dispute was resolved quickly under an amicable settlement which granted our client access to the adjacent property allowing construction to proceed.
Real Estate Finance Company – Entry and Collection of $12 Million Judgment
Herrick obtained the entry of a judgment totaling approximately $12 million against a real estate developer, two of his sons, and their affiliated entities. Following the entry of judgment, the judgment debtors refused to comply with multiple court orders holding the defendants in contempt and compelling them to respond to a variety of subpoenas. Herrick conducted depositions and other discovery regarding the judgment debtors' ability to pay and, upon doing so, filed an application for an installment payment order under C.P.L.R. § 5226. Following a four-day hearing before a court-appointed referee, the referee found one of the judgment debtors had an imputed annual income of $370,000 and that two of the other judgment debtors each had imputed annual incomes of $830,000. On that basis, the referee recommended, and the Supreme Court confirmed, that the judgment debtors are required to pay $406,000.00 per annum to Herrick's client, in equal installments of $33,833 per month, until the amounts due on the judgment have been paid and satisfied in full.
Debtor in Complex Commercial Real Estate Bankruptcy
Represented the debtor in a complex bankruptcy involving a closely held corporation whose main asset, a valuable Manhattan commercial property, had been placed under receivership prior to the chapter 11 filing. Our court confirmed reorganization plan resolved all disputes with shareholders and included a new $16.5 million mortgage loan used to satisfy all creditors.
Developers – Summary Judgment Dismissing Breach of Joint Venture Claims
Obtained summary judgment on behalf of real estate developers dismissing all claims filed by a plaintiff alleging our clients had breached an oral joint venture that entitled the plaintiff to share in the profits of a sale of a Brooklyn property. The Kings County Supreme Court also denied plaintiff’s cross motion for leave to amend and to compel disclosure.
Fashion Designer – Flagship Manhattan Store Leasing Dispute
Represented, as co-counsel, one of the world’s largest luxury fashion designers, as plaintiff, in litigation with the landlord of its flagship Manhattan retail location. Victories on behalf of the client included a ruling enjoining the landlord from terminating our client’s lease, an order for our client to continue paying the current rent under the lease rather than a much higher amount requested by the landlord, and a decision rejecting the landlord's motion for our client to post an $83 million bond related to plans to demolish and redevelop the site. The dispute was resolved in a settlement, pursuant to which the client obtained a new, long-term lease.
Real Estate Owner – $3 Million Commercial Leasing Dispute
Represented an affiliate of one of the nation’s largest owners, developers and managers of class A office space in a Manhattan office leasing dispute with a high profile hedge fund tenant and two unauthorized sub-tenants over unpaid rent and associated charges totaling nearly $3 million. Shortly after commencing litigation, the firm negotiated a settlement which allowed the client to quickly recover possession of the space.
Special Servicer – Litigation to Collect over $100 Million in Loans Secured by Campground Sites
Represented a commercial mortgage special servicer in its efforts to collect amounts due under two loans for $75 million and $38 million, secured by campground sites located throughout the country. Our representation of the client involved seven foreclosure actions, filed in both New Jersey and New York state courts, through which we took title to all seven properties. In the course of prosecuting these actions, we obtained an important decision from the Superior Court of New Jersey, Appellate Division, enforcing our client's standard pre-negotiation agreement – an agreement routinely obtained by lenders to avoid potential lender liability claims.
Appellate Division Reverses Civil Penalty against Landlord over ADA Accommodations
Herrick achieved a significant appellate victory on behalf of a national real estate development and management firm, securing a ruling from the Appellate Division, Second Department that reversed a New York City Commission on Human Rights order requiring the client to pay a $185,000 fine for denying a tenant's request to construct a handicapped-accessible entrance to her Queens apartment. In its ruling, the court wrote that the record lacked "substantial evidence" to contradict our client’s claim that installing an accessible entrance was not structurally feasible. The decision was the culmination of a nearly 6-year-long dispute in which we initially prevailed on the client’s behalf before an administrative law judge who held that the proposed accommodation sought by the tenant was not reasonable. The Commission, however, summarily rejected the ruling, and awarded $200,000 in damages and penalties. A Queens Supreme Court affirmed the agency’s decision but reduced the award of damages. On appeal, and after oral argument, the Second Department reversed the trial court’s decision, holding that the Commission’s determination of unlawful discrimination and award of damages should have been annulled in its entirety.
Special Master and Mediator – High Profile Real Estate Business Divorce
Acting as the court appointed mediator and special master for discovery in a high-profile business divorce involving 2 Herald Square, a large prominent “mixed use” building that is directly across the street from Macy’s Herald Square flagship store, and additional properties located in other states. The litigants include certain family members and other investors in a well known New York City based real estate company.
Condominium Developer – Dispute with Borough of Jamesburg Favorably Resolved
Successfully represented the developer of 42 newly completed residential condominium units located in Monroe Township, New Jersey in challenging the Borough of Jamesburg’s refusal to accept attempts to register the units as rentals, an issue critical for the closing of a pending sale of the property to a third-party buyer. This dispute was resolved amicably soon after filing suit in the Superior Court of New Jersey under an agreement that will allow the client to receive rental unit licenses after resubmitting applications to the Borough along with all applicable registration fees.
Real Estate Owners – “Baseball Arbitration” and Litigation over Valuation and Buy-out of NYC Shopping Center
Herrick delivered a major victory to real estate owners in a buy out dispute between partners over the valuation of a New York City shopping center that they co-owned. Prior to Herrick's involvement, the opposing party had won the right to buyout our clients' interest in the retail center, with the purchase price to be set based on a neutral appraiser's determination as to which party's appraisal was more accurate. The firm achieved two decisive victories on behalf of our clients in New York Supreme Court, obtaining an order that the appraisal process move forward immediately and then that the "date of valuation" was to be current rather than a 2012 date that the parties had previously discussed. Thereafter, two months of extensive appraisal proceedings ensued, and our valuation was ultimately chosen over the opposing party's assessment, which was many millions of dollars lower. The valuation date decision was affirmed, with costs, by the Appellate Division, Second Department.
Developer – Zoning Dispute with the City of Long Beach
Representing a real estate owner/developer in a high-profile dispute with the City of Long Beach, New York over zoning ordinances relating to a planned four tower residential project. In what has become one of the longest-running land use litigations in the country, Herrick helped to secure significant appellate wins, including an order permitting our client to seek damages in excess of $50 million, including interest and legal fees, against the City, and a judgment declaring it entitled to a building permit that would allow completion of the ocean front development as originally approved. In more recent rulings, the Appellate Division, Second Department held that the City had defaulted in serving an amended answer to our suit and failed to proffer a legally sufficient excuse for its default. The court further held that the individual City defendants named in our complaint should not have been dismissed from the litigation by the trial court and can therefore be held liable for damages.
All Claims Voluntarily Dismissed Following Award of Sanctions in Real Estate Dispute
Successful defense of an LLC in litigation over the breach of an alleged joint venture agreement which plaintiffs claimed entitled them to an ownership interest in a valuable Manhattan property. Herrick obtained an order canceling plaintiffs’ notice of pendency on the property, and successfully argued for sanctions based on frivolous litigation conduct. In addition to negotiating a substantial monetary settlement for attorneys’ fees and for costs associated with delays in refinancing a $32 million mortgage on the property, Herrick secured the voluntary dismissal of our client from the action and the plaintiffs’ unconditional and irrevocable release of any and all claims to ownership of the property.
Outlet Mall Developer – Regulatory Investigation
Representing the developer of a New York City outlet mall in an investigation into whether the Empire State Development Corporation’s financial support for economic development projects has been influenced by developer political contributions.
Real Estate Developer – NYS Attorney General Investigation Resolved Favorably
Achieved a highly favorable settlement involving no admission of wrongdoing on behalf of a real estate developer and two of its principals in an investigation by the New York State Attorney General into alleged improper lead removal procedures and harassment of tenants.
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.
All Claims Dismissed in Litigation Challenging $9 Million Sale of Brooklyn Apartment Building
Secured a ruling dismissing all claims against the insured buyers of a Brooklyn apartment building in litigation seeking to strip them of their interests in the property. The plaintiff launched a multi-pronged attack on the $9 million sale of the building, claiming the transaction had violated his right of first refusal, that the individual who had signed the deed transferring title to the property lacked capacity, and that the deed itself was a forgery. In its ruling, a New York state court granted our motion to dismiss in its entirety and cancelled the notice of pendency.
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.
Bridge Lender – Real Estate Debtor Bankruptcy
Represented the bridge lender in a single asset real estate debtor case in which Herrick successfully won default rate interest of 24% during the pendency of the debtor's chapter 11 case, where the non-default interest was 12% and the only default asserted was the filing of the debtor's bankruptcy case. Herrick also successfully defeated the debtor's reorganization plan that contemplated a cramdown of the client's mortgage debt, ultimately leading to a consensual chapter 11 plan in which the luxury high-rise condominium in Williamsburg securing the mortgage was transferred to our client.
Dispute with Former Property Manager – Allegations of Fraud and Self-Dealing
Represented the property owner of four valuable Manhattan buildings in an action filed in New York state court against our client's former property manager with damage claims in excess of $5 million. The dispute, which involved allegations of fraudulent and bad-faith conduct that included self-dealing, comingling of funds, and the misrepresentation of material information, was resolved favorably for the client following Herrick's successful opposition to motions to dismiss, strike allegations in the complaint, and for summary judgment.
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.
Real Estate Management Company – Precedent Setting Decision in Wage & Hour Action
Successful defense of a real estate management company and its principal sued by a former residential janitor and two alleged former laborers at New York City properties managed by our client. The plaintiffs claimed minimum wage and overtime violations under the Fair Labor Standards Act and New York Labor Law, as well as related common law claims. The court granted, in substantial part, our motion to dismiss, striking 9 of the plaintiffs’ 12 claims in one of the first decisions to interpret the minimum wage and overtime provisions under New York law and the Minimum Wage Order for the Building Service Industry as they relate to residential janitors.
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.