Opinion
8103 Index 600991/08
01-15-2019
115-117 — NASSAU ST., LLC, Also Known as 115-117 — Nassau Street, LLC, et al., Plaintiffs–respondents, v. NASSAU BEEKMAN, LLC, et al., Defendants–Appellants.
Law Office of D. Paul Martin PLLC, New York (D. Paul Martin of counsel), for appellants. Brill & Meisel, New York (Allen H. Brill of counsel), for respondents.
Law Office of D. Paul Martin PLLC, New York (D. Paul Martin of counsel), for appellants.
Brill & Meisel, New York (Allen H. Brill of counsel), for respondents.
Sweeny, J.P., Richter, Kapnick, Gesmer, Kern, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered August 16, 2016, which, after a nonjury trial, inter alia, granted judgment in favor of plaintiffs declaring that plaintiff Beekman Development, LLC was entitled to retain defendants' down payment as liquidated damages, and dismissed defendants' fourth, fifth and sixth counterclaims, unanimously affirmed, without costs.
This Court previously found that a triable issue of fact existed, precluding summary judgment for plaintiffs, as to whether the parties had entered the contract to purchase plaintiffs' air rights under a mutual mistaken belief that the air rights were available (see 74 A.D.3d 537, 903 N.Y.S.2d 25 [1st Dept. 2010] ). At trial, defendants failed to establish that there was a substantial mutual mistake existing at the time the parties entered into the contract warranting its rescission (see Thor Props., LLC v. Chetrit Group LLC , 91 A.D.3d 476, 478, 936 N.Y.S.2d 196 [1st Dept. 2012] ). The trial court properly determined that nothing in the contract or in the zoning law rendered the air rights conveyed to defendants unusable or unavailable to them.
We have considered defendants' remaining arguments and find them unavailing.