Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Donovan Real Estate Services, LLC v. LB-UBS 2007-C6-3500 Main Street Station LLC

United States District Court, W.D. New York

December 15, 2017

DONOVAN REAL ESTATE SERVICES LLC, Plaintiff,
v.
LB-UBS 2007-C6-3500 Main Street Station LLC, LB-UBS-2007-C6-Cortland Station LLC, LB-UBS 2007-C6-D&L Station LLC, LB-UBS 2007-C6-Henrietta Station LLC, LB-UBS 2007-C6-Southside Station LLC, and McKinley, Inc., Defendants.

          For Plaintiff: Brian R. Henzel, Esq. Brian R. Henzel PLLC Patrick Michael Kane, Esq. Smith Moore Leatherwood LLP.

          For Defendants: Joseph Lubertazzi, Jr., Esq. Peter M. Knob, Esq.

          DECISION AND ORDER

          CHARLES J. SIRAGUSA U.S. DISTRICT JUDGE.

         INTRODUCTION

         This contract dispute, removed from state court, is before the Court on the following applications relating to the complaint of plaintiff Donovan Real Estate Services, LLC (“Donovan”), which essentially alleges in four causes of action that it is owed brokerage fees.

         The pending motions are as follows:

         1) The motion of defendant, LB-UBS 2007-C6-3500 Main Street Station LLC, hereinafter referred to as the “Amherst Owner, ” for partial summary judgment on Donovan's claims against it with respect to Tops Markets, LLC (“Tops Amherst”);

         2) The motion of defendant, LB-UBS 2007-C6-Cortland Station LLC, hereinafter referred to as the “Cortland Owner, ” for partial summary judgment on Donovan's claims against it with respect to Tops Markets, LLC (“Tops Cortland”);

         3) The motion of defendant, LB-UBS 2007-C6-D & L Station LLC, hereinafter referred to as the “Depew Owner, ” for partial summary judgment on Donovan's claims against it with respect to Tops Markets, LLC (“Tops Depew”);

         4) The motion of Defendant, LB-UBS 2007-C6-Southside Station LLC, hereinafter referred to as the “Jamestown Owner, ” for partial summary judgment on Donovan's claims against it with respect to Tops Markets, LLC (“Tops Jamestown”);[1] and

         5) Donovan's cross-motion for summary judgment on all of its claims for brokerage fees against the Amherst, Cortland, Depew and Jamestown owner defendants (hereinafter collectively referred to as the “owner-defendants”), who have moved for partial summary judgment, and against LB-UBS 2007-C6-Henrietta Station LLC, hereinafter referred to as the “Henrietta Owner.” Donovan apparently is not seeking summary judgment against Defendant McKinley, Inc. (“McKinley”).

         For the reasons stated below, each Defendant's application for partial summary judgment is denied in its entirety, and Plaintiff's cross-motion is granted in part, and denied in part.

         BACKGROUND

         The salient facts necessary to the resolution of the motions are undisputed and are as follows. In December 2014, the properties at issue were purchased by the owner-defendants listed above. Prior to the owner-defendants' purchase, the previous owners hired McKinley to manage the properties. On April 8, 2013, McKinley hired Donovan and Vanguard-Fine, LLC, as brokers to lease vacant space at the properties. Exclusive Leasing Agreement at 1, Jun. 22, 2017, ECF No. 39-6. Once the new owners purchased their respective properties, each hired LNR Partners, LLC (“LNR”) to service the properties. In this capacity, on January 20, 2015, LNR, acting on behalf of each of the owner-defendants, entered into an exclusive property management agreement with McKinley. Exclusive Property Management Agreement (Henrietta Plaza), Jun. 16, 2017, ECF No. 38; Exclusive Property Management Agreement (Jamestown), Jun. 16, 2017, ECF No. 38-2; Exclusive Property Management Agreement (Cortland), Jun. 16, 2017, ECF No. 38-4; Exclusive Property Management Agreement (Depew), Jun. 16, 2017, ECF No. 38-6; and Exclusive Property Management Agreement (Amherst), Jun. 16, 2017, ECF No. 38-8. Of significance to the pending motions, in each of the property management agreements, section 8, “Leasing, ” contains this language: “Intentionally deleted.” Id. at § 8.

         On February 18, 2015, LNR, on behalf of the owner-defendants, entered into what is titled an “Exclusive Property Leasing Agreement” with Donovan for each of the properties at issue. Exclusive Property Leasing Agreement (Depew), Apr. 10, 2017, ECF No. 25-13, attached as Ex. A to Edwards Cert.; Exclusive Property Leasing Agreement (Amherst), Apr. 10, 2017, ECF No. 25-14 attached as Ex. B to Edwards Cert.; Exclusive Property Leasing Agreement (Cortland), Apr. 10, 2017, ECF No. 25-15, attached as Ex. C to Edwards Cert.; Exclusive Property Leasing Agreement (Jamestown), Apr. 10, 2017, ECF No. 25-16 attached as Ex. D to Edwards Cert.[2] Each agreement contains the following pertinent language:

Owner appoints Agent [Donovan] and Agent accepts appointment, on the terms and conditions provided below, as exclusive leasing agent of the real estate and improvements known as….

Id. at § 1. Section 8 concerns leasing and in pertinent part states as follows:

(d) Owner agrees to pay Agent a leasing commission equal to Four Percent (4%) of the Net Rental Value for the first five (5) years of the initial term of the lease or for any expansion space added to an existing lease. For any lease with a term exceeding five (5) years, the leasing commission shall be equal to Two Percent (2%) of the Net Rental Value for years six (6) through ten (10) of the remainder of the initial term. For the purposes of this paragraph, Net Rental Value shall be equal to the gross amount of all sums to be paid by tenant over the applicable period less the amount of rent allocated to tenant improvements performed at Owner's cost above Owner approved leasing parameters, concessions, free rent, moving allowances and other lease incentives and lease operating expense pass-throughs (including, but not limited to, property taxes, insurance, mortgage interest, management fees and other operating expense).…
(e) Should any tenant with a current lease for space at the Property renew or relocate within the Property during the term of this Agreement, Agent shall receive compensation equal to one-half (1 /2) the normal rate as defined in Paragraph 8(d) of this Agreement. Should any tenant with a pre-determined option exercise said option without materially deviating from terms and conditions of said option, Agent shall receive no compensation.…

         Exclusive Property Leasing Agreements (all) §8(d) & (e).

         In the spring of 2015, in connection with Tops Amherst, Tops Cortland, Tops Depew, and Tops Jamestown, Keith Edwards, an asset manager for LNR, “prompted McKinley … to enter into discussions” with each of the Tops stores. McKinley, on behalf of the owner-defendants and as directed by LNR, entered into negotiations that resulted in Tops signing documents that extended their leases at their respective locations.

         STANDARD ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.