Melrose Assoc. L.P. v Floral Assoc. L.P.

Melrose Assoc. L.P. v Floral Assoc. L.P. 2023 NY Slip Op 00181 Decided on January 17, 2023 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 and Entered: January 17, 2023
Before: Kapnick, J.P., Friedman, Kennedy, Mendez, Shulman, JJ.
Index No. 651323/20 Appeal No. 17108 Case No. 2022-02314

[*1]Melrose Associates Limited Partnership, Plaintiff-Appellant,

v

Floral Associates Limited Partnership, et al., Defendants-Respondents.



Floral Associates Limited Partnership, et al., Counterclaim Plaintiffs-Respondents,

v

Melrose Associates Limited Partnership, Counterclaim Defendant-Appellant, ESMC, LLC, Additional Counterclaim Defendant.

Law Office of Allen Bodner, New York (Allen Bodner of counsel), for appellant.

Sherin and Lodgen LLP, Boston, MA (Edward S. Cheng of the bar of the Commonwealth of Massachusetts, admitted pro hac vice, of counsel), and Ruskin Moscou Faltischek, P.C., Uniondale (Michael A. H. Schoenberg of counsel), for respondents.

Order, Supreme Court, New York County (Andrew Borrok, J.), entered on or about May 5, 2022, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to dismiss the counterclaims interposed by defendants/counterclaim plaintiffs Floral Associates Limited Partnership, Joseph R. Cefalo, Frederick W. Cefalo, and Stephen R. Cefalo, unanimously affirmed, without costs.

None of the evidence that plaintiff presented on its motion conclusively established a defense to the counterclaims as a matter of law (CPLR 3211[a][1]; see Leon v Martinez, 84 NY2d 83, 88 [1994]). Although plaintiff relies on an affidavit from its secretary as evidence that defendants initiated a $750,000 payment to Melrose and therefore waived any objection to making the payment, that affidavit does not constitute conclusive documentary evidence (see Tsimerman v Janoff, 40 AD3d 242, 242 [1st Dept 2007]).

We have considered plaintiff's remaining arguments and find that them unavailing. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 17, 2023