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Bevilacqua v. CRP/Extell Parcel I, L.P.

Supreme Court, New York County

July 9, 2013

Chris Bevilacqua, Plaintiff,
v.
CRP/Extell Parcel I, L.P., CRP/Extell Parcel I GP, L.L.C., Gary Barnett, Gershon Barnett, Gershon Swiatycki, Stroock &, Stroock & Lavan LLP, as escrow agent, Defendants. Index No. 155615/2012

Unpublished Opinion

Submission Date: 3/13/13

For Plaintiff: Lazarowitz & Manganillo LLP, Marc J. Held, Esq.

For Defendants: Boies, Schiller & Flexner LLP, Jason Cyrulnik, Esq.

DECISION AND ORDER

Ellen M. Coin, A.J.S.C.

Papers considered in review of this motion:

Papers

Numbered

Notice of Motion and Affidavits Annexed......

1

Affirmation in Opposition....................

2

Reply Memorandum of Law.......................

3

Defendants move pursuant to CPLR §3211(a) to dismiss plaintiff's complaint. For the reasons set forth below, the motion is granted and the complaint is dismissed.

Parties and Underlying Background

Plaintiff alleges that on or about August 23, 2007, he entered into a purchase agreement (the First Agreement) with CRP/Extell Parcel I, L.P. (CRP) to purchase a residential condominium apartment, Unit 10B, (the First Apartment) in a building (the Building) located at 80 Riverside Boulevard, New York, New York, for a total price of $3.5 million, and that under the First Agreement, he was required to make an initial down payment of $350, 000 and an additional payment of $175, 000 on the earlier of February 28, 2008 or 15 days after CRP presented an amendment to the Condominium Offering Plan for the Building (the Plan) declaring it effective (Complaint, ¶¶ 3, 12, 22-24, 30) .

CRP was the sponsor of the Plan, which it filed with the Attorney General on or about August 11, 2006 (id., ¶¶ 3, 12). CRP/Extell Parcel I GP, L.L.C. (LLC) was CRP's general partner, Gershon Barnett, Gershon Swiatycki and Gary Barnett were CRP's principals. Stroock & Stroock & Lavan (Stroock) was the escrow agent for the down payments and drafted the First Agreement and the Plan (id. , ¶¶ 5-7, 26) .

Plaintiff states that he made the two payments totaling $525, 000 (the Deposit) in accordance with the First Agreement, but that the closing for the First Apartment did not occur by September 1, 2008 as scheduled, but instead occurred on February 12, 2009 and that he was not offered a right to rescind the First Agreement (id., ¶¶ 25, 33-34, 36-40, 48). He further states that on March 5, 2009, he entered into a contract termination agreement with CRP (the Termination Agreement), which released the parties from their obligations under the First Agreement and that the parties entered into a second agreement (the Second Agreement) -under which plaintiff agreed to buy a different apartment, Unit 12B (the Second Apartment), for the same price of $3.5 million with the Deposit transferred to the Second Agreement (id., ¶¶ 62-69).

Plaintiff further alleges that the closing date of May 29, 2009 was not met for the Second Apartment, that he was not offered rescission, that defendants therefore breached the Second Agreement by not returning the Deposit and that they breached the Martin Act by making false, misleading statements and material omissions in connection with their obligations under the Plan (id., ¶¶ 77, 80-81). He seeks rescission of the Second Agreement and damages in the principal amount of the Deposit (id., ¶ 290) .

On June 16, 2009, plaintiff filed an application to the Attorney General for determination of the disposition of the down payment, seeking return of the Deposit (motion, Ex. A, item 13 [d]). On June 22, 2010, the Attorney General issued a determination (the Determination), that denied rescission, finding that "[b]y entering into the [Second] Agreement, [plaintiff] and [CRP] established a new contractual relationship [and plaintiff's] contention that any rights [to rescind] he may have had under the [First] Agreement lacks merit" (Determination at 6). The Determination found that the Second Agreement's merger clause barred parol evidence of ...


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