Sutton 58 Assoc. LLC v Pilevsky

Sutton 58 Assoc. LLC v Pilevsky 2019 NY Slip Op 00210 Decided on January 10, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 10, 2019
Friedman, J.P., Gische, Oing, Singh, Moulton, JJ.
8064 654917/16

[*1]Sutton 58 Associates LLC, Plaintiff-Respondent,

v

Philip Pilevsky, et al., Defendants-Appellants.

Friedman Kaplan Seiler & Adelman LLP, New York (Robert S. Smith of counsel), for appellants.

Kramer Levin Naftalis & Frankel LLP, New York (Ronald S. Greenberg of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 8, 2018, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff's claims, in which the sole damages plaintiff claims are losses resulting from the delay of a real estate project due to the bankruptcy filing of two nonparty entities,

are preempted by federal law (see Astor Holdings, Inc. v Roski, 325 F Supp 2d 251, 262-263 [SD NY 2003]). We note that in the bankruptcy proceedings, plaintiff moved to dismiss Mezz Borrower's petition as filed in bad faith but voluntarily withdrew that motion. As in National Hockey League v Moyes (2015 WL 7008213, 2015 US Dist LEXIS 153262 [D Ariz, Nov. 12, 2015, No. CV-10-01036-PHX-GMS]), and unlike Davis v Yageo Corp. (481 F3d 661 [9th Cir 2007]), plaintiff's damages arise only because of the bankruptcy filings.

In light of the above disposition, we need not reach the parties' arguments about the Noerr-Pennington doctrine and veil-piercing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 10, 2019

CLERK