Opinion
2012-05-1
ACF HILLSIDE, LLC, respondent, v. George LAMBRAKIS, etc., appellant.
Andrew B. Schultz, Jericho, N.Y., and Ginsberg & Katsorhis, P.C., Flushing, N.Y., for appellant (one brief filed). *901 Kaye Scholer, LLP, New York, N.Y. (Richard C. Seltzer, Margaret A. Prystowsky, and James D. Herschlein of counsel), for respondent.
Andrew B. Schultz, Jericho, N.Y., and Ginsberg & Katsorhis, P.C., Flushing, N.Y., for appellant (one brief filed). *901 Kaye Scholer, LLP, New York, N.Y. (Richard C. Seltzer, Margaret A. Prystowsky, and James D. Herschlein of counsel), for respondent.
In an action for specific performance of a contract, the defendant appeals from an order of the Supreme Court, Queens County (Agate, J.), entered September 17, 2010, which granted the plaintiff's motion for summary judgment on the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff, ACF Hillside, LLC, acquired a “special member” interest in Eagle Realty, LLC (hereinafter Eagle), pursuant to Eagle's amended operating agreement (hereinafter the amended agreement). The amended agreement gave the plaintiff the authority to take control of Eagle under certain circumstances, including, inter alia, a default on either of two notes executed in connection with loans made by Archer Capital Fund, L.P. (hereinafter Archer), to Eagle. After Eagle's managing member, George Lambrakis (hereinafter the defendant), failed to cede control of Eagle upon the plaintiff's invocation of the default clause, the plaintiff commenced this action against him to compel specific performance of the amended agreement. The plaintiff moved for summary judgment on the complaint, and the Supreme Court granted the plaintiff's motion. The defendant appeals, and we affirm.
The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting evidence as to its authority to take control of Eagle upon Eagle's default on the notes, by virtue of Eagle's failure to repay the loans, and its invocation of the default clause ( see Petra CRE CDO 2007–1, Ltd. v. 160 Jamaica Owners, LLC, 73 A.D.3d 883, 884, 904 N.Y.S.2d 699; Wells Fargo Bank v. Das Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681; Neighborhood Hous. Servs. of N.Y. City, Inc. v. Meltzer, 67 A.D.3d 872, 873, 889 N.Y.S.2d 627; Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 825 N.Y.S.2d 766). In opposition, the defendant failed to raise a triable issue of fact ( see Wells Fargo Bank v. Das Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681). The defendant's contention that the amended agreement was the product of fraud was supported only by conclusory allegations, and was, therefore, insufficient to raise a triable issue of fact ( see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559–560, 883 N.Y.S.2d 147, 910 N.E.2d 976; Petra CRE CDO 2007–1, Ltd. v. 160 Jamaica Owners, LLC, 73 A.D.3d at 884, 904 N.Y.S.2d 699; Heffez v. L & G Gen. Constr., Inc., 56 A.D.3d 526, 527, 867 N.Y.S.2d 198; Quest Commercial, LLC v. Rovner, 35 A.D.3d at 577, 825 N.Y.S.2d 766). Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint.
The defendant's contentions relating to an order of preclusion are not properly before this Court on this appeal ( see Corsello v. Verizon N.Y., Inc., 77 A.D.3d 344, 369, 908 N.Y.S.2d 57, mod on other grounds 18 N.Y.3d 777, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [2012]; Sirius Am. Ins. Co. v. Vigo Constr. Corp., 48 A.D.3d 450, 451–452, 852 N.Y.S.2d 176).