115-117 Nassau St., LLC v. Nassau Beekman, LLC

2019 NY Slip Op 230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 2019
• Docket: 8103 600991/08 -117
• Status: Published

Opinion

115-117 Nassau St., LLC v Nassau Beekman, LLC (2019 NY Slip Op 00230)

115-117 Nassau St., LLC v Nassau Beekman, LLC

2019 NY Slip Op 00230

Decided on January 15, 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 15, 2019
Sweeny, J.P., Richter, Kapnick, Gesmer, Kern, JJ.

8103 600991/08 -117

[*1]115-117 Nassau St., LLC, also known as Nassau Street, LLC, et al., Plaintiffs-Respondents,

v

Nassau Beekman, LLC, et al., Defendants-Appellants.

Law Office of D. Paul Martin PLLC, New York (D. Paul Martin of counsel), for appellants.

Brill & Meisel, New York (Allen H. Brill of counsel), for respondents.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered August 16, 2016, which, after a nonjury trial, inter alia, granted judgment in favor of plaintiffs declaring that plaintiff Beekman Development, LLC was entitled to retain defendants' down payment as liquidated damages, and dismissed defendants' fourth, fifth and sixth counterclaims, unanimously affirmed, without costs.

This Court previously found that a triable issue of fact existed, precluding summary judgment for plaintiffs, as to whether the parties had entered the contract to purchase plaintiffs' air rights under a mutual mistaken belief that the air rights were available (see 74 AD3d 537 [1st Dept 2010]). At trial, defendants failed to establish that there was a substantial mutual mistake existing at the time the parties entered into the contract warranting its rescission (see Thor Props., LLC v Chetrit Group LLC, 91 AD3d 476, 478 [1st Dept 2012]). The trial court properly determined that nothing in the contract or in the zoning law rendered the air rights conveyed to defendants unusable or unavailable to them.

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 15, 2019

CLERK