NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT -------------------------------------------------------X REEC WEST 11TH STREET LLC, INDEX NO. 651014/2017 Plaintiff-Appellant, -against- 246 WEST 11TH ST. REALTY CORP.; JOHN DOES 1-10; JANE DOES 1-10; and ABC COMPANIES 1-10; CIVIL ACTION PRE-ARGUMENT STATEMENT Defendants-Respondents. -------------------------------------------------------X 1. Title of the Action: REEC West 11TH Street LLC v 246 West 11TH St. Realty Corp.; John Does 1-10; Jane Does 1-10; and ABC Companies 1-10. 2. Parties Involved: Name Original Status Appellate Status REEC West 11th Street LLC Plaintiff Appellant 246 West 11th St. Realty Corp. Defendant Respondent John Does 1-10 Jane Does 1-10 ABC Companies 1-10 Defendant Defendant Defendant 3. Counsel for Appellant: Fischer Porter & Thomas, P.C. 560 Sylvan Avenue, Suite 3061 Englewood Cliffs, NJ 07632 Attn: Arthur Scott L. Porter, Jr. (201) 569-5959 (201) 871-4544 fax aporter@fpt- law.com 1 of 24
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 4. Counsel for Respondents: Belkin Burden Wenig & Goldman LLP 270 Madison Avenue New York, NY 10016 Attn: Jeffrey L. Goldman, Esq. (212) 867-4466 jgoldman@bbwg.com 5. Court, Judge and County: Supreme Court of New York, New York County Commercial Division IAS Part 53 Hon. Charles E. Ramos, J.S.C. 6. Orde r or Judgment from which Appeal Taken: Decision of Hon. Charles E. Ramos, J.S.C. made on the record before counsel on March 23, 2017, with the decision so ordered by short form Order on April 11, 2017, and the settled Order entered on April 11, 2017 (collectively, the Decision and Order ), denying in all respects Appellant s Order to Show Cause for a preliminary injunction and vacating the temporary restraining order entered February 28, 2017, and declaring that there shall be a time of the essence closing under the contract of sale dated October 29, 2016, as amended by First Amendment dated November 14, 2015 (collectively, the Contract ) on April 13, 2017 at 11:00 a.m. at the offices of Belkin Burden Wenig & Goldman, LLP, 270 Madison Avenue, New York, New York, and that if Appellant fails to close then it shall be in default of the Contract. 7. Nature and Object of Proceeding: Appellant initiated this matter by Verified Complaint with an Order to Show Cause, seeking a temporary restraining order and preliminary injunction, and pursuing claims a declaratory judgment and for breach of contract with specific performance. 8. Result Below: Following the Order to Show Cause hearing before Hon. Charles E. Ramos, J.S.C. on March 23, 2017, the Court entered the Decision and Order, as described above, denying Appellant s application for entry of a preliminary injunction, vacating the temporary restraints issued February 28, 2017, and declaring a time of the essence closing for April 13, 2017. This matter arises from a real estate transaction between a buyer, plaintiff- appellant REEC West 11th Street LLC ( Appellant ), and a seller, 246 West 11h St. Realty Corp. ( Respondent ), of property commonly known as 246 West 11th Street, New York, NY (the Property ), which is a townhouse situation in Manhattan s West Village. Appellant and Respondent entered into a contract of sale for the Property on October 29, 2015, which was then amended on November 14, 2016. The parties originally cooperated in working toward a 2 2 of 24
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 closing, but, on February 14, 2017, Respondent notified Appellant of a time of the essence closing for March 1, 2017, which was only fifteen days hence, and was a date Respondent chose in bad faith because it knew Appellant would not be able to comply due to lengthy delays caused by one of Respondent s neighbor, hindering Appellant s efforts to obtain the approvals necessary to receive its purchase money and development financing for closing. Appellant now appeals to have the Decision and Order overturned, so that it is not unduly prejudiced with an April 13th time of the essence closing and default Contact, which would strip Appellant of its contractual and equitable rights to title of the Property before this motion, Appellant s appeal as of right, and final judgment on the claims of declaratory judgment and breach of contract can be considered by the appellate and trial courts, thereby rendering Appellant s motion, appeal, and final judgment academic and ineffectual. Appellant seeks immediate entry of a restraining order followed by entry on motion of a preliminary injunction that will, pending hearing of Appellant s motion and appeal, prevent Respondent from holding a time of the essence closing and declaring Appellant in default of the Contract, among other relief, as well as a stay of enforcement of the Decision and Order. 9. Grounds for Seeking Reversal: First, Appellant appeals on the grounds the trial court abused its discretion by issuing Decision and Order denying Appellant s motion for preliminary judgment using an erroneous legal standard. The trial court applied a higher standard when considering the likelihood of Appellant s ultimate success on the merits, instead of the reduced degree of proof required under Republic of Lebanon v. Sotheby s, 167 A.D.2d 142, 145, 561 N.Y.S.2d 566 (1st Dept 1990) for finding the likelihood of success on the merits, where failure to uphold the status quo and denial of a preliminary injunction will render final judgment ineffectual. Second, Appellant appeals on the grounds that the trial court failed to adequately analyze and consider the lack of reasonableness of Respondent s February 14, 2017 notice of a time of the essence closing for March 1, 2017 under the controlling law and facts of this case, and failed to state its reasoning on the record. 10. Other Related Matters: None. Respectfully submitted, FISCHER PORTER & THOMAS, P.C. Attorneys for Plaintiff-Appellant REEC West 11th Street LLC Date: April 11, 2017 Arthur Scott L. Porter, Jr. 3 3 of 24
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 Attachme nts: 1. Copy of order or judgment appealed from X attached 2. Copy of opinion or decision X attached does not exist 3. Copy of notice of appeal or order granting leave to appeal X attached 4 4 of 24
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 Longform Order Entered April 11, 2017 5 of 24
NYSCEF DOC. NO. 35 38 RECEIVED NYSCEF: 04/11/2017 61 of 24 2
NYSCEF DOC. NO. 35 38 RECEIVED NYSCEF: 04/11/2017 72 of 24 2
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 Shortform Order Deeming March 23, 2017 Decision "So Ordered" 8 of 24
NYSCEF DOC. NO. 34 38 RECEIVED NYSCEF: 04/11/2017 91 of 24 1
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 Transcript of March 23, 2017 Decision 10 of 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 11 1 of 11 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 12 2 of 11 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 13 3 of 11 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 14 4 of 11 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 15 5 of 11 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 16 6 of 11 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 17 7 of 11 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 18 8 of 11 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 19 9 of 11 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 10 20 of 11 24
FILED: NEW YORK COUNTY CLERK 03/27/2017 04/11/2017 09:51 08:27 AM PM INDEX NO. 651014/2017 NYSCEF DOC. NO. 26 38 RECEIVED NYSCEF: 03/27/2017 04/11/2017 11 21 of 11 24
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 Notice of Appeal 22 of 24
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------X REEC WEST 11TH STREET LLC, INDEX NO. 651014/2017 -against- Plaintiff, CIVIL ACTION 246 WEST 11TH ST. REALTY CORP.; JOHN DOES 1-10; JANE DOES 1-10; and ABC COMPANIES 1-10; NOTICE OF APPEAL Defendants. -------------------------------------------------------X PLEASE TAKE NOTICE, that the plaintiff hereby appeals to the Appellate Division of the Supreme Court, First Department, from the Order entered by the Hon. Charles E. Ramos, J.S.C. in the Supreme Court, County of New York on April 11, 2017 and Justice Ramos decision made made on the record on March 23, 2017, as affirmed by the Short Form Order entered April 11, 2017 deeming the decision so ordered, and from each and every part of said Order and decision. Dated: New York, New York April 11, 2017 FISCHER PORTER & THOMAS, P.C. Attorneys for Plaintiff REEC West 11th Street LLC Arthur Scott L. Porter, Jr. 560 Sylvan Avenue, Suite 3061 Englewood Cliffs, NJ 07632 (201) 569-5959 Kaplan Kravet & Vogel, P.C., Of Counsel 630 Third Avenue, Suite 501 New York, NY 10017 23 of 24
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 TO: Clerk of New York County New York County Courthouse 60 Centre Street, Room 161 New York, New York 10007 and Attn: Jeffrey L. Goldman, Esq. BELKIN BURDEN WENIG & GOLDMAN LLP 270 Madison Avenue New York, NY 10016 (212) 867-4466 (by e-filing through NYSCEF) Attorneys for defendants 2 24 of 24