Opinion
655314/2016
07-02-2018
WW-35TH LLC, BW 35th LLC, WW-36th LLC, BW 36th LLC, MB-35th, LLC, BB-35th, LLC, DRMBRE-35th LLC, MB-36th LLC, BB-36th, LLC, DRMBRE-36th LLC, The SP Limited Partnership, and The BMDGP Limited Partnership, Plaintiffs, v. The MORGAN COURT CONDOMINIUM, Defendants.
KRAMER LEVIN NAFTALIS & FRANKEL LLP, 1177 Avenue of the Americas, New York, NY 10036 By: RONALD S. GREENBERG and NATHAN M. HAMERMAN, Attorney for WW-35th LLC., BW 35th LLC., WW-36th LLC, BW 36th LLC, MB-35th LLC., BB-35th LLC., DRMBRE-35th LLC., MB-36th LLC., BB-36th LLC., and DRMBRE-36th LLC. BRAVERMAN GREENSPUN, P.C., 110 East 42nd Street, New York, NY 10017, By: JONATHAN KOLBRENER, Esq., Attorney for Defendant Morgan Court ROSENBERG & ESTIS, P.C., 733 Third Avenue, New York, NY 10017, Attorney for The SP Limited Partnership, The BMDGP Limited Partnership and Barton Mark Perlbinder
KRAMER LEVIN NAFTALIS & FRANKEL LLP, 1177 Avenue of the Americas, New York, NY 10036 By: RONALD S. GREENBERG and NATHAN M. HAMERMAN, Attorney for WW-35th LLC., BW 35th LLC., WW-36th LLC, BW 36th LLC, MB-35th LLC., BB-35th LLC., DRMBRE-35th LLC., MB-36th LLC., BB-36th LLC., and DRMBRE-36th LLC.
BRAVERMAN GREENSPUN, P.C., 110 East 42nd Street, New York, NY 10017, By: JONATHAN KOLBRENER, Esq., Attorney for Defendant Morgan Court
ROSENBERG & ESTIS, P.C., 733 Third Avenue, New York, NY 10017, Attorney for The SP Limited Partnership, The BMDGP Limited Partnership and Barton Mark Perlbinder
Robert R. Reed, J.
This action arises out of a dispute concerning the removal of an emergency electrical generator that services defendant The Morgan Court Condominium (Morgan Court), a 32-story condominium building located at 211 Madison Avenue, New York, New York (Block 860, Lots 1001 to 1040) (Morgan Property).
In Motion Sequence No. 1, plaintiffs WW-35th LLC, BW 35th LLC, WW-36th LLC, BW 36th LLC, MB-35th, LLC, BB-35th, LLC, DRMBRE-35th LLC, MB-36th LLC, BB-36th, LLC, and DRMBRE-36th LLC (collectively, plaintiffs) move, pursuant to CPLR 3212, for summary judgment against Morgan Court on its breach of contract cause of action.
In Motion Sequence No. 3, plaintiffs move for summary judgment dismissing the counterclaims of intervenor defendants The SP Limited Partnership (SP), The BMDGP Limited Partnership (BMDGP) and Barton Mark Perlbinder (Mark) (collectively, Intervenor Defendants).
The motions are consolidated for decision and disposition herein.
BACKGROUND
In 1982, Mark acquired the Morgan Property and developed Morgan Court through his company, non-party Perlbinder Construction Corp. (Perlbinder Construction). Perlbinder Construction, the condominium sponsor, retains an interest in three residential units. Morgan Court's amenities include a solarium, pool and garden. The rear of the Morgan Property abuts 36 East 36th Street (Block 860, Lot 42) (36 Property), and a portion of the solarium and all of the pool and garden are situated on the 36 Property. The 36 Property is owned by WW-36th LLC, BW 36th LLC, MB-36th LLC, BB-36th LLC, and DRMBRE-36th LLC and by SP and BMDGP (collectively, 36 Owners) as tenants-in-common. Directly south and adjacent to the 36 Property is 35 East 35th Street (Block 860, Lot 24) (35 Property), which is owned by WW-35th LLC, BW 35th LLC, MB-35th, LLC, BB-35th, LLC, and DRMBRE-35th LLC and by SP and BMDGP (collectively, 35 Owners) as tenants-in-common. The principals behind the 35 Owners and 36 Owners (collectively, 35 and 36 Owners) are all family members. Non-party Charles H. Greenthal Management Corp. (Greenthal) manages both the 35 and 36 Properties. William and Jonathan West serve as Greenthal's chief executive officer and chief operating officer, respectively.
The Intervenor Defendants refer to the solarium as a greenhouse, which is how the space is identified in Morgan Court's Amended Condominium Offering Plan (Offering Plan). To avoid confusion, the court will refer to the space as a solarium as it is how the space is identified in the complaint and in the Agreement.
Julius Perlbinder, whose two companies originally owned the 35 Property and 36 Property (collectively, 35 and 36 Properties), transferred ownership of the properties to his sons, Mark and Stephen Perlbinder (Stephen), and to his nephews William West (William), Bernard West, Bruce Berger, Michael Berger and Martin Berger. Stephen and his wife, Sandra Perlbinder (Sandra), are SP's two general partners. Mark is the sole general partner of BMDGP. The Perlbinders, Wests, and Berger families, collectively, own the 35 and 36 Properties.
Morgan Court is legally required to maintain an emergency electrical generator, and the generator and generator pad on which it sits are located on the 35 Property. Because no part of the 35 Property abuts the Morgan Property, wires and conduits that connect the generator to Morgan Court run across the 36 Property. William, a member of WW-35th LLC and WW-36th LLC, states that the generator has been disabled for some time.
In 2016, Greenthal negotiated an Agreement of Easement (Agreement) on behalf of the 35 and 36 Owners with the Board of Managers of The Morgan Court Condominium (Morgan Board). According to the Agreement dated May 10, 2016, the 36 Owners granted Morgan Court an exclusive easement over that portion of their property on which the solarium is situated and a non-exclusive easement over that portion of their property on which the garden and pool are situated. In exchange, Morgan Court granted access to the garden and pool to the residents of the apartment buildings on the 35 and 36 Properties. Morgan Court also agreed to remove the existing generator from the 35 Property and to install a new generator on the 36 Property. Pursuant to Sections 3(b) and 5(b), Morgan Court agreed to complete the work "in an expeditious manner but in no event to exceed ninety (90) days from the date hereof, subject to force majeure." In the event Morgan Court failed to install the new generator, Section 3(f)(i) allowed the 36 Owners to "seek the enforcement of the provisions of this Paragraph 3 ... in an action for specific performance, injunction or declaratory judgment." Section 12, which set forth remedies for breach, states, in part, that "[t]he agreements and undertakings by each party hereto shall be enforceable by action for such remedies as are available at law or in equity, including but not limited to, specific performance."
Plaintiffs allege that Morgan Court failed to perform its obligations under the Agreement, specifically the removal of the existing generator from the 35 Property, despite having been granted an extension of time to October 5, 2016 to perform. They commenced this action by filing a summons and complaint on October 6, 2016 and asserted a single cause of action for breach of contract to compel Morgan Court to perform. They ask the court for a declaration that Morgan Court breached the Agreement by failing to remove the existing generator from the 35 Property and for an order directing Morgan Court to remove the generator and to obtain the necessary permits and insurance to complete that work. Plaintiffs also seek to recover their attorney's fees, costs and expenses as provided for in Section 14(i) of the Agreement. Morgan Court raises four affirmative defenses in its answer.
The Intervenor Defendants, who were initially named as plaintiffs, asserted two counterclaims and cross-claims for a judgment declaring the Agreement void and unenforceable. In the first counterclaim, the Intervenor Defendants allege that the Agreement is not binding because Delaware law required signatures from SP's two general partners, Stephen and Sandra, on the Agreement. In the second counterclaim, the Intervenor Defendants allege that the Morgan Board lacked authority to enter the Agreement because they failed to obtain the consent of all unit owners as required by Real Property Law § 339-i (2).
In Motion Sequence No. 1, plaintiffs move for summary judgment against Morgan Court on the ground that Morgan Court breached the Agreement by failing to timely remove the existing electrical generator from the 35 Property. In response, Morgan Court argues that the motion is premature in the absence of discovery and that summary judgment is precluded by the issues raised in the Intervenor Defendants' counterclaims.
In Motion Sequence No. 3, plaintiffs move for summary judgment on the Intervenor Defendants' counterclaims. The Intervenor Defendants oppose the motion and argue that the Agreement is unenforceable. Morgan largely repeats its arguments raised in opposition to Motion Sequence No. 1. Morgan Court and the Intervenor Defendants also contend that the motion is premature.
DISCUSSION
It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ). The motion must be supported by evidence in admissible form (see Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ), and the pleadings and other proof such as affidavits, depositions and written admissions (see CPLR 3212 ). The "facts must be viewed in the light most favorable to the non-moving party" ( Vega v. Restani Constr. Corp. , 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted] )." Once the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (id. , citing Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). The "[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers " ( Vega , 18 NY3d at 503 [emphasis in original] ).
Because the issues raised in Motion Sequence No. 3 bear on resolution of Motion Sequence No. 1, the court will address Motion Sequence No. 3 first.
Motion Sequence No. 3
A. The Intervenor Defendants' First Counterclaim
In their first counterclaim, the Intervenor Defendants seek a judgment declaring that the Agreement is void and unenforceable, because Delaware law requires both of SP's general partners to sign the Agreement.
Plaintiffs contend that the first counterclaim should be dismissed, because Delaware law governing partnerships does not require the signature of all general partners in order to bind SP to the Agreement. Plaintiffs also submit that they were entitled to rely on Stephen's express representation that he was authorized to act for SP.
In response, the Intervenor Defendants tender an affidavit from Stephen in which he avers that Sandra "did not authorize the execution of the Agreement in any way" and that his signing of the Agreement was not part of SP's ordinary course of business (Stephen aff, ¶ 8). Stephen also states that the attorney who prepared the Agreement had previously prepared two documents for SP, and that those earlier documents included two signature lines for SP's general partners. Based on prior practice, the attorney, or his firm, should have included a second signature line for Sandra on the Agreement, but failed to do so.
Morgan Court in its opposition refers to numerous Delaware statutes governing partnerships for the proposition that the transfer of SP's property rights pursuant to the Agreement is invalid where the Agreement is signed by only one of SP's partners.
The Intervenor Defendants and Morgan also contend that the motion is premature in the absence of documentary and testimonial discovery.
Delaware Code Annotated, title 6, § 15-301 (Partner agent of partnership) reads, in part:
"(1) Each partner is an agent of the partnership for the purpose of its business, purposes or activities. An act of a partner, including the execution of an instrument in the partnership name, for apparently carrying on in the ordinary course the partnership's business ... or business ... of the kind carried on by the partnership binds the partnership, unless the partner had no authority to act for the partnership in the particular matter and the person with whom the partner was dealing had notice that the partner lacked authority.
(2) An act of a partner which is not apparently for carrying on in the ordinary course the partnership's business ... or business ... of the kind carried on by the partnership binds the partnership only if the act was authorized by the other partners."
Thus, all that is required under the statute is authority from the other general partners. Here, the Intervenor Defendants did not allege in their counterclaim that Stephen lacked the requisite authority. Instead, they claimed only that Sandra failed to execute the Agreement. Under Delaware Code Annotated, title 6, § 15-301, Sandra is not required by law to sign the Agreement. Consequently, plaintiffs have established that the Agreement is valid and enforceable against SP.
Moreover, plaintiffs were entitled to rely on Stephen's express representation that he was authorized to execute the Agreement (see Zuker v. Landau , 194 AD2d 500, 501 [1st Dept 1993], lv dismissed 82 NY2d 920 [1994] ). Section 14(g) states that "[e]ach party hereto warrants and represents to the other parties that it has all requisite authority under its organizational documents to execute, deliver and perform under this Agreement" (plaintiffs' exhibit B at 15). Stephen signed the Agreement for SP in March 2016, yet he waited for more than one year to attempt to retract his representation. He offered no explanation why he signed the Agreement in the first place.
The Intervenor Defendants fail to raise a triable issue of material fact in response. Absent from their opposition is an affidavit or other admissible evidence from Sandra, the general partner aggrieved by Stephen's purportedly unauthorized act, to corroborate Stephen's conclusory statement that he lacked the requisite authority. As one of only two general partners, Stephen knew or should have known that he lacked Sandra's consent when he signed the Agreement. He offered no explanation for his lack of knowledge. His contention that the attorney who prepared the Agreement knew to include two signature lines also is wholly unsupported by any facts. Stephen failed to state whether he had raised the issue of the missing signature line with anyone prior to his signing the Agreement.
Stephen also fails to explain, let alone support, how the transaction does not comport with SP's stated business purpose. According to SP's partnership agreement, one of the partnership's stated purposes is to provide "centralized management for minority interests in entities holding real property or interests in real property" (Intervenor Defendants' exhibit M at 5). SP could "enter into, make and perform all contracts, agreements and other undertakings as may be necessary" (id. at 7). The Agreement undeniably pertains to a property interest owned by SP.
Furthermore, the motion is not premature. CPLR 3212(f) permits the court to deny a motion for summary judgment or order a continuance when it appears from "affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated." Incomplete discovery may, in some circumstances, warrant denial of the motion (see Ali v. Effron , 106 AD3d 560, 560 [1st Dept 2013] ). Morgan Court refers to several Delaware statutes that discuss a partner's authority to act on behalf of the partnership (see Del Code Ann., tit. 6, §§ 15-303 [a] and 15-401 [j] ), and argues that discovery will likely uncover evidence of the scope of Stephen's authority. These contentions, though, are nothing more than "mere hope or conjecture" ( Safier v. Saggio Rest. Inc. , 151 AD3d 543, 544 [1st Dept 2017], citing Voluto Ventures, LLC v. Jenkens & Gilchrist Parker Chapin LLP , 44 AD3d 557, 557 [1st Dept 2007] ), which is insufficient. It is also incumbent upon a party opposing a summary judgment motion to lay bare its proof (see Genger v. Genger , 123 AD3d 445, 447 [1st Dept 2014] ). Specific knowledge of whether Stephen was authorized to execute the Agreement for SP is within the Intervenor Defendants' sole possession. They submitted no evidence from Sandra to corroborate Stephen's assertions.
Based on the foregoing, plaintiffs are entitled to summary judgment on the first counterclaim, and the first counterclaim is dismissed. The court need not address plaintiffs' other arguments raised in support of summary judgment which, in any event, lack merit.
Plaintiffs had argued that the severability clause found in Section 14(a) of the Agreement rendered it enforceable against SP. However, application of that provision presumes that a valid contract exists between the parties. Plaintiffs had also argued that a tenant-in-common may take any action to protect the common property, but this broad proposition was not supported by the case cited in their moving papers.
B. The Intervenor Defendants' Second Counterclaim
In their second counterclaim, the Intervenor Defendants allege that the Agreement is void and unenforceable because Morgan Court was not authorized to execute it. The Agreement alters the common interest appurtenant to each condominium unit, and alterations to the common interest require the consent of all unit owners under Real Property Law § 339-i.
Plaintiffs argue that the Intervenor Defendants conflate the statutory definition for the term "common element" with the definition for "common interest." The generator provides emergency power to the entire condominium, and, therefore, it constitutes a common element. Changes made to a common element do not require the unanimous consent of all unit owners. Plaintiffs also argue that the Board had actual and apparent authority to execute the Agreement.
In response, the Intervenor Defendants do not deny that the generator qualifies as a common element under the Offering Plan, Declaration, or By-Laws. Instead, they contend that "the Agreement purports to diminish each unit owner's use and enjoyment of the general common elements (and, by extension, the common interest) by moving the Emergency Generator ... [into] an area enjoyed and utilized by the unit owners" (Intervenor Defendants' memorandum of law at 22). In near identical affidavits, the owners of 9 residential units of Morgan Court state that they were appalled to learn that the Generator Work would destroy views into the garden from the solarium and would adversely affect the monetary value of their units.
Condominium associations are governed by Real Property Law Article 9-B (see 4260 Broadway Realty Co. v. Assimakopoulos , 264 AD2d 626, 627 [1st Dept 1999] ). Every unit owner in a condominium is entitled to exclusive ownership and possession of his or her unit ( Real Property Law § 339-h ). Every unit has "appurtenant thereto a common interest" ( Real Property Law § 339-i [1 ] ), and an undivided interest in the common elements ( Real Property Law § 339-i [3 ] ). The term "Common interests" includes the "(i) proportionate, undivided interest in fee simple absolute, or (ii) proportionate undivided leasehold interest in the common elements appertaining to each unit, as expressed in the declaration" ( Real Property Law § 339-e [5 ] ). The term "common element" is defined as "[t]he basements, cellars, yards, gardens, recreational or community facilities, parking areas and storage spaces" ( Real Property Law § 339-e [3 ] [c] ). A common element also includes the "[c]entral and appurtenant installations for services such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning and incinerating" ( Real Property Law § 339-e [3 ] [e] ), and "[a]ll other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use" ( Real Property Law § 339-e [3 ] [h] ). As is relevant here, Real Property Law § 399-i (2) reads, in part, that "[t]he common interest appurtenant to each unit as expressed in the declaration shall have a permanent character and shall not be altered without the consent of all unit owners affected, expressed in an amended declaration." Real Property Law § 339-i (4) also states, in part, that "[e]ach unit owner may use the common elements in accordance with the purpose for which they are intended, without hindering the exercise of or encroaching upon the rights of the other unit owners."
Plaintiffs have established that the generator qualifies as a common element, and the removal and replacement of the generator does not affect any individual unit owner's common interest in Morgan Court's common elements (see Di Fabio v. Omnipoint Communications Inc. , 2008 NY Misc LEXIS 711, at *2-3, 2008 WL 7908050 [Sup Ct, Westchester County 2008], affd 66 AD3d 635 [2d Dept 2009] ). The Declaration defines the term "Common Interest" as the "undivided percentage interest of each Unit in the Common Elements" (Intervenor Defendants' exhibit G at 4). The Generator Work does not alter, modify or diminish any unit owner's percentage interest in the common elements, and "the common interest appurtenant to each unit as expressed in the condominium's Declaration has retained its permanent character" ( Cohen v. Board of Mgrs. of 22 Perry St. Condominium , 278 AD2d 147, 148 [1st Dept 2000] ). Furthermore, while Mark and the individual unit owners assert that the generator would alter the common elements, i.e., the solarium, garden and pool, "individual unit owners lack standing to seek damages for injury to the building's common elements" ( Board of Mgrs. of the Chelsea 19 Condominium v. Chelsea 19 Assoc. , 73 AD3d 581, 581 [1st Dept 2010] ; Caprer v. Nussbaum , 36 AD3d 176, 184 [2d Dept 2006] ).
The Intervenor Defendants' reliance on Board of Mgrs. of the Sunrise Manor Condominium Assn. v. Aksakalova Family L.P. (50 Misc 3d 1215[A], 2016 NY Slip Op. 50110(U) [Sup Ct, Queens County 2016] ) is misplaced. That action involved an unauthorized change to roof space, which had been designated a common element in the condominium declaration, to accommodate privately-owned HVAC equipment that serviced a single commercial unit (id. at 13-15). In this action, the Offering Plan designated the garden and solarium as general common elements (Intervenor Defendants' exhibit F at 2), and the generator services the entire condominium building.
As for the Morgan Board's authority, it is well settled that an agent may bind a principal to a contract by way of actual authority, implied actual authority, or apparent authority. With regards actual authority, "the scope of an agent's actual authority is determined by the intention of the principal or, at least, by the manifestation of that intention to the agent" ( Wen Kroy Realty Co. v. Public Natl. Bank & Trust Co. , 260 NY 84, 89 [1932] ). Implied actual authority depends on a principal's verbal or other actions to the agent "which reasonably give an appearance of authority to conduct the transaction" (see Greene v. Hellman , 51 NY2d 197, 204 [1980] ). Apparent authority turns on the "words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction" ( Hallock v. State of New York , 64 NY2d 224, 231 [1984] ).
"[C]ondominium common elements are solely under the control of the board of managers" ( Pekelnaya v. Allyn , 25 AD3d 111, 120 [1st Dept 2005] ), and Section 2.4 of the By-Laws provides that the Morgan Board may "operate, maintain, repair, restore, add to, improve, alter and replace the Common Elements" (plaintiffs' exhibit C at 3). The Agreement pertains to the operation of the condominium, and the By-Laws imbued the Morgan Board's president with actual and apparent authority to act on Morgan Court's behalf (see Odell v. 704 Broadway Condominium , 284 AD2d 52, 57 [1st Dept 2001] ). Therefore, the Morgan Board was authorized to enter the Agreement. To the extent that plaintiffs maintained that Mark ratified the Agreement for the Morgan Board, the argument lacks merit as Mark signed the Agreement in his capacity as BMDGP's sole general partner.
Finally, the court declines to consider the Intervenor Defendants' contention, raised for the first time in its opposition, that the Morgan Board lacked the requisite authority to enter the Agreement under Section 5.3 of the By-Laws. Section 5.3 (Alterations, Additions or Improvements to the General Common Elements) of the By-Laws, states:
"Except as otherwise provided in the Declaration or in these By-Laws, all necessary or desirable alterations, additions, or improvements in or to any of the Common Elements shall be made by the Condominium Board, and the cost and expense thereof shall constitute a Common Expense. Notwithstanding the foregoing, however, whenever the cost and expense of any such alterations, additions, or improvements would, in the judgment of the Condominium Board, exceed $25,000 in the aggregate in any calendar year, such proposed alterations, additions or improvements shall not be made unless first approved by the Unit Owners ... owning a majority of the Common Interests at a duly constituted meeting of the Unit Owners ..."
An AIA standard Form of Agreement dated August 8, 2013, which predates the Agreement by nearly three years, shows that Morgan Court contracted with non-party Maximum Electric Corp. to replace the existing generator (Intervenor Defendants' exhibit I at 1). Morgan Court's redacted financial statements for 2014 and 2015 listed the generator replacement work as a capital project and showed that $98,485 of the $154,590 contract price had already been paid (Intervenor Defendants' exhibit J at 8). Mark avers that Morgan Board failed to give the unit owners notice of a meeting or seek their majority approval in accordance with Section 5.3 of the By-Laws.
"A court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint" ( Ostrov v. Rozbruch , 91 AD3d 147, 154 [1st Dept 2012], quoting Mezger v. Wyndham Homes, Inc. , 81 AD3d 795, 796 [2d Dept 2011] ; accord Abalola v. Flower Hosp. , 44 AD3d 522, 522 [1st Dept 2007] ). Nowhere in the second counterclaim did the Intervenor Defendants plead any facts alleging that the Morgan Board acted in violation of the By-Laws, and they may not do so for the first time in their opposition (see Abreu v. Stratford Realty Assoc. , 208 AD2d 465, 465 [1st Dept 1994] [rejecting plaintiff's "belated presentation of an entirely new theory of recovery" because of "the considerable prejudice to defendant"] ).
Accordingly, plaintiffs are entitled to summary judgment on the second counterclaim, and the second counterclaim is dismissed.
Motion Sequence No. 1
Plaintiffs also move for summary judgment against Morgan Court on the ground that Morgan Court breached the Agreement by failing to remove the existing generator. Plaintiffs also seek to recover their attorneys' fees as the prevailing party.
To prevail on a cause of action for breach of contract, plaintiff must prove the existence of a contract, plaintiff's performance, defendant's breach, and damages (see Harris v. Seward Park Hous. Corp. , 79 AD3d 425, 426 [1st Dept 2010] ). Absent evidence showing that an enforceable agreement had been reached, a breach of contract claim shall be dismissed (see Aksman v. Xiongwei Ju , 21 AD3d 260, 261-262 (1st Dept 2005), lv denied 5 NY3d 715 [2005] ).
In support of the motion, plaintiffs tender an affidavit from William who avers that Morgan Court failed to perform under the terms of the Agreement. Affidavits from Joyce West, a general partner in The BJW Limited Partnership, which is a member of BW 35th LLC and BW 36th LLC; Martin Berger, a member of MB-35h LLC and MB-36th LLC; and Seth Berger, a trustee of the BCB 2003 Trust, which is a member of BB-35th LLC and BB-36th LLC, largely repeat William's statements. Plaintiffs have met their burden on summary judgment.
The court notes that Martin Berger's affidavit, which was notarized in Florida, lacks a certificate of conformity (see CPLR 2309 ).
Morgan Court does not address whether it was authorized to execute the Agreement or whether it defaulted on its obligations. Instead, it focuses its opposition on whether the Agreement is enforceable based on Stephen's authority. Given that the Agreement is valid and enforceable, supra , Morgan Court fails to raise a triable issue of fact on the breach of contract claim.
"Specific performance is a proper remedy ... where ‘the subject matter of the particular contract is unique and has no established market value’ " ( Sokoloff v. Harriman Estates Dev. Corp. , 96 NY2d 409, 415 [2001] [internal quotation marks and citation omitted] ). Given the unique nature of the Agreement, plaintiffs' motion for summary judgment and its request for specific performance against Morgan Court is granted.
Morgan Court asks the court to preserve its right to relocate the emergency generator on the 36 Property. Plaintiffs in reply do not dispute that the Agreement already grants Morgan Court that right. Because plaintiffs in their complaint sought specific performance on only that portion of the Agreement pertaining to the removal of the existing generator from the 35 Property, the court limits the relief granted to that sought in the complaint.
Section 14(i) of the Agreement reads:
"If any legal action or proceeding arising out of or relating to this Agreement is brought by any party to this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to any other relief that may be granted, the reasonable attorneys' fees, costs and expenses incurred in the action or proceeding by the prevailing party."
The general rule is that "attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule" ( Hooper Assoc. v. AGS Computers , 74 NY2d 487, 491 [1989] [citations omitted] ). Plaintiffs, as the prevailing party, are entitled to recover its reasonable attorneys' fees and costs (see Sanchez v. Hay , 122 AD3d 533, 534 [1st Dept 2014], lv dismissed 24 NY3d 1213 [2015] ).
Accordingly, it is hereby
ORDERED that the motion of plaintiffs WW-35th LLC, BW 35th LLC, WW-36th LLC, BW 36th LLC, MB-35th, LLC, BB-35th, LLC, DRMBRE-35th LLC, MB-36th LLC, BB-36th, LLC, and DRMBRE-36th LLC (collectively, plaintiffs) for summary judgment against defendant The Morgan Court Condominium (Motion Sequence No. 1) is granted, and plaintiffs are entitled to a judgment granting them specific performance of the Agreement of Easement dated May 10, 2016 (Agreement of Easement) from said defendant as it pertains to the removal of the existing emergency electrical generator and all associated equipment from 35 East 35th Street, New York, New York; and it is further
ORDERED that plaintiffs' motion for summary judgment dismissing the counterclaims of intervenor defendants The SP Limited Partnership, The BMDGP Limited Partnership, and Barton Mark Perlbinder (Motion Sequence No. 3) is granted, and the first and second counterclaims are dismissed as against plaintiffs; and it is further
ORDERED, that plaintiffs are directed to settle a judgment on notice in this action, and that the proposed judgment shall include a provision directing defendant The Morgan Court Condominium to provide plaintiffs with not less than ten (10) days' prior written notice of its intention to enter upon 35 East 35th Street, New York, New York and commence removal of the existing emergency electrical generator and all associated equipment, as set forth in Section 5 (b) in the Agreement of Easement, and a provision directing defendant The Morgan Court Condominium to obtain all necessary insurance for the removal of the existing emergency electrical generator and all associated equipment from 35 East 35th Street, New York, New York, as set forth in Section 7 of the Agreement of Easement; and it is further
ORDERED that the portion of plaintiffs' action for the recovery of attorney's fees is severed and the issue of the amount of reasonable attorney's fees plaintiffs may recover against the defendant The Morgan Court Condominium is referred to a Special Referee to hear and determine, in accordance with CPLR 4317 (b) ; and it is further
ORDERED that counsel for plaintiffs shall, within 30 days from the date of this order, serve a copy of this order with notice of entry, together with a completed Information Sheet, upon the Special Referee Clerk in the Motion Support Office (Room 119M), who is directed to place this matter on the calendar of the Special Referee's Part for the earliest convenient date; and it is further
ORDERED that the balance of the action concerning the cross-claims asserted by intervenor defendants The SP Limited Partnership, The BMDGP Limited Partnership, and Barton Mark Perlbinder defendants against defendant The Morgan Court Condominium is severed and continued; and it is further
ORDERED that counsel are directed to appear for a status conference in Room 581 on September 13, 2018, at 2:30 p.m., to discuss the viability of the cross-claims asserted by intervenor defendants The SP Limited Partnership, The BMDGP Limited Partnership, and Barton Mark Perlbinder against defendant The Morgan Court Condominium.