Akeroyd v Soho 311 Dev., Inc.

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Akeroyd v Soho 311 Dev., Inc. 2014 NY Slip Op 30360(U) February 10, 2014 Supreme Court, New York County Docket Number: 103925/10 Judge: Jeffrey K. Oing Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. scr.:~NEC\0\:2111120- ¢411· _ _ _ _. . . . ,_ _ _ _ _ _ _ _, _ _ , _ __ _ _ _ _ _ _ _. . , . ._ _ _ _ _ _ _ _ _ _ _ _ _ __ [* 1] 4 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: __!Ji/_ Justice INDEX N O . - - - - MOTION D A T E - - - MOTION SEQ. NO. - - - The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s}. _ _ _ _ __ I No(s}. - - - - - 1No(s). - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits----------------- Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - Upon the foregoing papers, it Is ordered that this motion is (~~ fe rfu,~ c.ec_ord!.tvc.e_ ~ Jk acedWlr~ vnMno/'OL'~ft°~"s""--l ""'~ w 0 ~ :::> .., ~ ~'> ~' ~ Q w a:: a:: w LL. w a:: .. >- ...-. !!!.. z FILC.0 ..J ..J :::> 0 u. (/) I- FEB 112014 <( (.) w w a:: g, (!) w z nuNTY CLERK'S OF1'"'. ,. "-JE\flf vo.- ., a:: - ~ -I ~ w "' ..J <( 0 0 LL. 0 ..... - :c z w j:: a:: :E LL. 0 0 Dated: J ..;.: .. f;..>"" ¢ 1. CHECK ONE: ..................................................................... 0 2. CHECK AS APPROPRIATE: ...........................MOTION IS: D GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 A CASE DISPOSED D DENIED 0GR~NTED IN PART -ti OTHER SUBMIT ORDER SETTLE ORDER DO NOT POST NON-FINAL DISPOSITION 0 FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 48 - -- - - ---- ---- -----x SHANE F.l\EROYD I 1 intiff, Index No. : 10392'5/10 againstSOHO 31 Mtn Seq. No. 004 DEVELOPMENT, DECISION AND ORDER INC., Defendant. JEFFREY K. OING, J.: Defendant, SOHO 311 Devel , Inc., moves, pursuant to CPLR 3212, for an order granting it surTL.'1la the complaint. counterclaims, In a an award of attorney's d.i s ing on its fou Defendant also seeks sumrnary ::; s. or decision and order, entered February 9, 2011, this Court denied plaintiff's mct:i.on for de t j 's cross-motion for summary j SUrTL""'.lary j t, and dismiss ng the comp la In December 2008, ~iff received notice of a Sixth Amendment to the um Offer Plan ("Sixth Amendment") . x 100 foot parcel of land erroneously included in ginal Offering Plan. On May 26, 2009, a signed a rd rider amending the ement or additional custom work in the Unir, which was pe formed. On st 10, 2009, plaintiff's counsel in~ormed defendant that plaintiff rescinded the eement because the Sixth Amendment contained informat on that entially chan e presently unobstruc ed ews f i client. Thereafter, plaintiff nor a at the ember 11, 2009 c~osing. reel descri ion canst tutes a Whether the land material erro and, herefore, consritutes a breac~ of the Agreement is ed. Also, the ies disagre about the p~a iff's obli i lfill the eement, particularly tiff was on notice o+ t e Si nt several to si i g the th rd ride n hat both [* 3] Index No. 103925/10 Mtn Seq. No. 004 Page 2 of 4 plaintiff and defendant raise material issues of triable facts, the parties' respective motions for summary judgment are denied. Contrary to defendant's arguments, which are virtually similar to the ones already considered by this Court, a factual issue still remains as to whether removal of the parcel of land included in the original offering plan is material. plaintiff continues to main~ain Indeed, that the removal was material: Q. You used the word "material." Why was the removal of that plot of land material to you? A. The plot of land itself was material just by the very nature of its size. It was a building, 200 square feet. And so, you know, in absolute terms that's why I view it as material. From my perspective, I think certainly it's a significant piece of the overall property, which obviously my apartment was going to be a part of. Also, from my apartment, actually, from the backside actually had uninterrupted views over what was -- what was -- what formerly was that property. And obviously if the land used was to change, then potentially that view would have been affected. And also from -- you know, again, just from a value perspective obviously associated with that, part of the property were presumably air rights, again, that what would have had value that would have applied to the whole property, which, obviously, if that was taken away, it would not accrue to the property. (Akeroyd 1/18/13 EBT at pp. 54-55). Further, plaintiff maintains again that he did not waive his right to rescind the contract based on defendant's alleged misrepresentation (Akeroyd 9/11/13 Aff., ~ 15) Nonetheless, in light of plaintiff's EBT conducted after the first summary judgmenL moticn, defendant argues that [* 4] Page 3 of Index No. 103925/10 Mtn Seq. No. 004 "oateria it is a at her ing and to other reasons, ai namely, oersonal and iff's de lt was inan ial: you rst conclude that with se? Q. war.t to go 4 d not * * ever come to a conclusion at some dn't want t go fo wi h your Q. Did poi:Jt that purcha e? conclusion? d I corie to Q. Yes. A. Yes, Q. And I did. was that? A. It would have been, I guess, the - I ess ould not say. I recal it was a the end of the end of '08, somet around towards end o '08, beg ing of '09 is when that -i Q. ed tha What p dete ion on your part? ation of things. A. It was a -- it was a You know, I started to, you know, feel general y to the ral rt le th the positi general c c circumstances t -- just circumstances. Whether it was, you know, specific to De and rally to the economy. lso ned was that at the t~me -think what that same time, you know, my personal life at or around And around that time I was separat~ng changed. s ating from my wife. And so at from - o y were not go ~o come some point i~ looked as ~ft over. I (Akero l/18/13 EBT at Alt pla tif 's ar defendar:t, such t st 68 69) . may acial demonstrate tf'.at s concerning "rnaterialityn may be ve , conve ently fa ls t ion of plaintiff's EST test mention the ext:ual, atter [* 5] 4 of Index No. 103925/10 Mtn Seq. No. 004 th Also, ar ame ime I think, you know, communications broke down with with -- with S Mews. I think there had en ome changes to e I was li th, and, , we 't really have wor ng re ationship. And then the cu t ion of al +- was, know, vvhen was made aware of of obvious y sixth amendment and, know, the en ial cts that ad to t property and to the value of the property. And, you know, that cted the - it ed Soho Mews generall . And then all her with conve sation with s. And I was actually aware of or made aware ri s to rescind. And that wa all the st of events there went from basically the end '08 and vvent into the into su'111Tter of '0 9. at pp. 6 9- 7 0) . iff's basis for pla early tual. Rather, under these was due personal and financial was due removal o ORDERED tha denied; i ORDERE~ o is not c~rcumstances, r his to rescind the contract ri circ~mstances, or whether s amendment, which gave notice of the s i is motion for summary j defendant' tha~ counsel shal ca l the tatus con lerk of Pa 48 at rence. memorandum opinion constitutes t the Court. is is fu!:ther 646-3 6-3265 to schedu e a o i the plot of land. ngly, Thi ' s sing his rescission sion to exercise his purport decis to raises a factual issue as to plaintiff's test de s, contra decision and order

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