Opinion
10063 Index 653300/16
10-31-2019
ELMROCK OPPORTUNITY MASTER FUND I, L.P., Plaintiff-Appellant, v. CITICORP NORTH AMERICA, INC., et al., Defendants-Respondents.
Kaplan Fox & Kilsheimer LLP, New York (Gregory K. Arenson of counsel), for appellant. Goodwin Procter LLP, New York (Marshall H. Fishman of counsel), for respondents.
Kaplan Fox & Kilsheimer LLP, New York (Gregory K. Arenson of counsel), for appellant.
Goodwin Procter LLP, New York (Marshall H. Fishman of counsel), for respondents.
Renwick, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.
Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on is breach of contract claim or, that an issue of fact exists for trial. The record unequivocally demonstrates that the disputed $123,271,899 settlement payment was for "Basic Rent" due under certain facility leases through July 1, 2017. As such, this sum was properly excluded from the valuation of the "Option Property," as defined in plaintiff's option agreements.
Plaintiff may not recover attorneys' fees and costs ( UBS Sec. LLC v. RAE Sys. Inc., 101 A.D.3d 510, 954 N.Y.S.2d 878 [1st Dept. 2012], lv denied 20 N.Y.3d 861, 2013 WL 1150366 [2013] ).