Jan F. Karst, Plaintiff-Appellant,
W.P. Carey Inc., Defendant-Respondent.
Hubbard & Reed LLP, New York (Christopher Paparella and
Sarah Cave of counsel) for appellant.
Debevoise & Plimpton LLP, New York (Jyotin Hamid of
counsel), for respondent.
Renwick, J.P., Kapnick, Gesmer, Kern, JJ.
Supreme Court, New York County (Charles E. Ramos, J.),
entered on or about February 16, 2017, which denied
plaintiff's motion for summary judgment, unanimously
affirmed, with costs. Order, same court and Justice, entered
on or about April 13, 2017, which, to the extent appealed
from, denied plaintiff's motion to renew, unanimously
affirmed, with costs.
breach of contract action, there are material issues of fact
surrounding the purpose of the payments received by plaintiff
between December 2013 and September 2014, that render summary
judgment improper. Moreover, even though the parties agree
that interest is due to plaintiff, they disagree about the
date from which interest should run, as well as the amount on
which it should be calculated.
June 2003 and September 2008, plaintiff, a former employee of
nonparty W.P. Carey International LLC (WPCI), was granted
approximately 2.5 million units of interest in WPCI, as well
as other subsidiary companies, in exchange for
plaintiff's "provision of services." Plaintiff
was "not required to make any Capital Contributions...
in exchange for [the] Units." These units of interest
entitled plaintiff to fee income distributions from the
various companies. Also, on or about September 30, 2008,
plaintiff entered into a "put agreement" with W.P.
Carey & Co. LLC (WPC),  the parent company of
plaintiff's former employer, WPCI, and others. Pursuant
to the put agreement, plaintiff had the right to require WPC
to purchase his interest units (the Put Right). Once
plaintiff gave notice of his intention to exercise his Put
Right, the appraisal process was triggered, which would
result in the determination of the value of his interest
units, or the put purchase price. Within 30 days of the
conclusion of the appraisal process, plaintiff was to tender
his interest units in exchange for the put purchase price,
which was to be paid in shares of WPC restricted stock.
exercised his Put Right on October 1, 2013, thereby
triggering the appraisal process, which according to
plaintiff, concluded in April 2015,  and ultimately
valued plaintiff's interest units at 14.3 million
dollars. Plaintiff contends that after he exercised his Put
Right, WPC "seized" his ownership interests because
plaintiff did not receive any fee income distributions, and
defendant retained 100% of the profit shares for itself.
Moreover, because plaintiff did not receive his shares of WPC
stock in exchange for his interest units until April 7, 2016,
WPC, according to plaintiff, also prevented plaintiff from
reaping the financial benefits associated with holding the
WPC stock, including dividend payments.
argues that because defendant seized his interest units on
October 31, 2013, he is entitled to recover prejudgment
interest on the value of the WPC shares as well as accrued
dividends on the WPC stock that was used to pay the put
purchase price, running from October 31, 2013. Plaintiff
relies upon a September 2015 email from defendant's tax
director saying that no income was allocated to plaintiff
after October 31, 2013. In response, defendant argues that
plaintiff received over one million dollars between December
2013 and September 2014 and that such payments were income
distributions, thereby showing that plaintiff's interests
were in fact not seized. Defendant points to an affidavit
from its chief executive officer, which plaintiff included in
his moving papers on the motion below, and that was submitted
in an earlier special proceeding to confirm the appraisal
value, in which the CEO averred that WPCI made income
distributions to plaintiff after October 31, 2013. On reply
on the motion below, plaintiff submitted K-1s for 2013 and
2014, which, according to plaintiff, show that his profit
share in the subsidiary companies was listed as
"NONE" and that any payments were actually a return
of capital . Moreover, plaintiff contends that
defendant created a "feigned factual dispute" by
contradicting its own documents - i.e. the September 2015
email and the affidavit from its CEO.
the parties dispute the purpose of the payments made between
December 2013 and September 2014 and whether defendant did in
fact "seize" plaintiff's interest units, which,
in turn, affects the date from which interest should be
calculated. Thus, because there are issues of fact
surrounding the one million dollars worth of payments,
plaintiff's motion for summary judgment was properly
denied (see Winegrad v New York Univ. Med. Ctr., 64
N.Y.2d 851, 853  [failure to tender "sufficient
evidence to eliminate any material issues of fact"
requires denial of a summary judgment motion]).
and contrary to plaintiff's argument, this is not a case
where an affidavit contradicts prior deposition testimony
(see Harty v Lenci, 294 A.D.2d 296, 298 [1st Dept
2002]), or a sworn bill of particulars (see Johnson v
Marriott Mgt. Servs. Corp., 44 A.D.3d 450, 451 [1st Dept
2007], lv denied 10 N.Y.3d 716');">10 N.Y.3d 716 ), thereby
feigning an issue of fact; it merely contradicts an email.
renewal motion, plaintiff failed to offer new facts that
would change the prior determination (CPLR 2221[e]). While
he submitted his post-summary judgment requests for
admissions and defendant's objection thereto as well as
the K-1s and emails that he had submitted on the original
motion, to the extent he asked defendant to admit that
"no income earned or received by the International
companies after October 31, 2013 was allocated to" him,
and other such disputed facts, the requests were improper
(see New Image Constr., Inc. v TDR Enters. Inc., 74
A.D.3d 680, 681 [1st Dept 2010]; Marguess v City of New
York, 30 A.D.2d 782');">30 A.D.2d 782 [1st Dept 1968], affd 28
N.Y.2d 527 ). The proper requests related to the K-1s
and emails and therefore were not new facts.
 WPC is defendant's