Board of Mgrs. of the 432 Park Condominium v. 56th & Park (NY) Owner, LLC

2025 NY Slip Op 31369(U)

Opinion

Board of Mgrs. of the 432 Park Condominium v 56th & Park (NY) Owner, LLC 2025 NY Slip Op 31369(U) April 17, 2025 Supreme Court, New York County Docket Number: Index No. 655617/2021 Judge: Melissa A. Crane Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 04/17/2025 04:42 PM INDEX NO. 655617/2021 NYSCEF DOC. NO. 1027 RECEIVED NYSCEF: 04/17/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MELISSA A. CRANE PART 60M Justice ---------------------------------------------------------------------------------X INDEX NO. 655617/2021 BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE INDIVIDUAL UNIT 01/08/2025, OWNERS AND THE COMMERCIAL UNIT OWNERS, 02/14/2025, BOARD OF MANAGERS OF THE COMMERCIAL MOTION DATE 02/24/2025 SECTION OF THE 432 PARK CONDOMINIUM, BOARD OF MANAGERS OF THE RESIDENTIAL SECTION OF THE MOTION SEQ. NO. 025 026 027 432 PARK CONDOMINIUM, ON BEHALF OF THE INDIVIDUAL UNIT OWNERS,

Plaintiff,

-v- DECISION + ORDER ON MOTION 56TH AND PARK (NY) OWNER, LLC,RYAN HARTER, HARRY MACKLOWE,

Defendant. ---------------------------------------------------------------------------------X

56TH AND PARK (NY) OWNER, LLC Third-Party Index No. 595204/2022 Plaintiff,

-against-

LEND LEASE (US) CONSTRUCTION LMB INC., SLCE ARCHITECTS LLP, WSP USA BUILDINGS, INC. F/K/A, WSP USA BUILDINGS, INC. F/K/A WSP CANTOR SEINUK STRUCTURAL ENGINEERS, ROWAN DAVIES, IRWIN, INC.,, JENKINS AND HUNTINGTON, INC., VDA, INC.

Defendant. --------------------------------------------------------------------------------X

HARRY MACKLOWE Second Third-Party Index No. 595923/2022 Plaintiff,

432 PARK PROPERTIES INC.

Defendant. --------------------------------------------------------------------------------X

655617/2021 BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE Page 1 of 6 INDIVIDUAL UNIT OWNERS AND THE COMMERCIAL UNIT OWNERS ET AL vs. 56TH AND PARK (NY) OWNER, LLC ET AL Motion No. 025 026 027

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LEND LEASE (US) CONSTRUCTION LMB INC. Third Third-Party Index No. 595956/2022 Plaintiff,

RAEL AUTOMATIC SPRINKLER COMPANY, INC., ASM MECHANICAL SYSTEMS, A.S.R. ELECTRICAL CONTRACTING, INC., CELTIC SHEETMETAL, INC., COMPONENT ASSEMBLY SYSTEMS, INC., IDA EXTERIOR SYSTEMS, LLC, L.I.F. INDUSTRIES, INC., MAYRICH CONSTRUCTION CORP., PARAMOUNT PLUMBING CO. OF NY, INC., ROGER & SONS CONCRETE, INC., NICHOLAS & GALLOWAY, INC., A&H CUSTOM MACHINE LTD., TAYLOR DEVICES, INC., METROPOLITAN WALTERS, LLC, SCHINDLER ELEVATOR CORPORATION, JOHN DOES

Defendant. --------------------------------------------------------------------------------X

CELTIC SHEETMETAL, INC. Fourth Third-Party Index No. 595257/2023 Plaintiff,

INTERNATIONAL ASBESTOS REMOVAL, INC. F/K/A JOHN GRANDO, INC., PREMIER INSULATION SERVICES CORP., PRECISION TEST AND BALANCE OF NY CORP.

Defendant. --------------------------------------------------------------------------------X

MAYRICH CONSTRUCTION CORP. Fifth Third-Party Index No. 595301/2023 Plaintiff,

STARBRITE WATERPROOFING CO. INC., CIVETTA- COUSINS JV, L.L.C.

Defendant. --------------------------------------------------------------------------------X

ROGER & SONS CONCRETE, INC. Sixth Third-Party Index No. 595305/2023 Plaintiff,

FERRARA BROS. BUILDING MATERIALS CORP., DOKA USA LTD., RETECH SYSTEMS LLC, STARBRITE WATERPROOFING CO., INC., DYWIDAG-SYSTEMS

655617/2021 BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE Page 2 of 6 INDIVIDUAL UNIT OWNERS AND THE COMMERCIAL UNIT OWNERS ET AL vs. 56TH AND PARK (NY) OWNER, LLC ET AL Motion No. 025 026 027

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INTERNATIONAL, USA, INC., FALCON STEEL COMPANY, INC., HILTI, INC., FERRARA BROS. LLC, SMYRNA READY MIX CONCRETE LLC, SRM CONCRETE LLC, NUCOR HARRIS REBAR NORTHEAST LLC

Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 025) 916, 917, 918, 919, 920, 921, 923, 926, 927, 928, 929, 930, 931, 932, 933, 934, 935, 936, 937, 938, 939, 940, 941, 942, 943, 944, 945, 946, 947, 948, 949, 950, 951, 952, 953, 954, 955, 956, 957, 958, 959, 960, 961, 985, 986, 987, 988, 989, 990, 991, 992, 993, 994, 995, 996, 997 were read on this motion to/for AMEND CAPTION/PLEADINGS .

The following e-filed documents, listed by NYSCEF document number (Motion 026) 963, 964, 965, 966, 967, 968, 969, 970, 971, 972, 973, 974, 975, 976, 977, 978, 979, 980, 981, 982, 983, 984, 1012, 1013, 1014, 1015, 1016, 1017, 1023 were read on this motion to/for ENFORCEMENT .

The following e-filed documents, listed by NYSCEF document number (Motion 027) 998, 999, 1000, 1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1018, 1019, 1020, 1021, 1022, 1024 were read on this motion to/for ENFORCEMENT .

The motions are decided in accordance with the reasoning on the record of 4/17/2025.

The motion to amend (motion 25) and its cross motion for sanctions are denied. Motions 26 and

27 to enforce a settlement are granted.

With respect to the motion to amend, as more fully discussed on the record, the discovery

schedule has been extended numerous times. After the last time plaintiffs moved to amend

(motion 9), the court granted the motion, but found it necessary to put parameters around

potential future amendments. On the record on the May 3, 2023 transcript [see EDOC 932], the

court stated: “However, going forward, should plaintiffs discover additional defects, they can

have 30 days to raise their suspicions with defendants, and 45 days after raising those suspicions

to amend if they are going to do so. All right?”

Here, it does not appear that plaintiffs met those parameters. Meanwhile, discovery has

progressed to the point that fact discovery is more or less closed. The parties are now in the

655617/2021 BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE Page 3 of 6 INDIVIDUAL UNIT OWNERS AND THE COMMERCIAL UNIT OWNERS ET AL vs. 56TH AND PARK (NY) OWNER, LLC ET AL Motion No. 025 026 027

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expert discovery phase [see EDOC 922 indicating that fact discovery closed on 12/31/2024]. The

court thanks Judge Andrew Peck, who has acted as Special Master on discovery issues, for

getting the parties to this point on this factually intense case.

Allowing plaintiffs to amend to assert fraud claims for millions of dollars against

defendants 56th and Park (NY) Owner, LLC (“Sponsor”), WSP USA Buildings, Inc., and SLCE

Architects LLP will open up months of additional fact discovery, including, but not limited to,

plaintiffs’ reasonable reliance. There is also a potential statute of limitations issue, so there will

certainly be the inevitable motions to dismiss. All this will slow down a case that is already

almost four years old.

There is no prejudice to plaintiffs who can assert these claims in a separate action, while

the procedural posture of this case is such that allowing the amendment now would seriously

prejudice the more peripheral defendants. These parties have been paying lawyers for years

while parties and claims keep being added having nothing to do with them. It is time to allow

expert discovery in the main action to finish and for summary judgment motions or trial to occur.

The court denies the cross motion for sanctions. This motion was not frivolous in any

way.

The motions (26 and 27) to enforce the settlement between plaintiffs reached by and

between Plaintiffs, 56th and Park (NY) Owner (“Sponsor”), LLC, Lendlease (US) Construction

LMB Inc. (“Lendlease”), Skyline and S&S Manufacturing, Inc. (“S&S”) are granted pursuant to

the reasoning on the record. Namely on February 19, 2024, plaintiff’s attorney wrote to Andre

Major, counsel for Skyline, that the agreement was in place:

I believe we are good to go with he [sic] agreement so you should send it to counsel for Lend Lease and Sponsor to approve. One thing, you mention Certain Underwriters at Lloyd’s, which I assume is your client’s carrier, in the release

655617/2021 BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE Page 4 of 6 INDIVIDUAL UNIT OWNERS AND THE COMMERCIAL UNIT OWNERS ET AL vs. 56TH AND PARK (NY) OWNER, LLC ET AL Motion No. 025 026 027

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section. If you need to list them, I think you need to have a representative sign for them. Otherwise, we should be able to wrap this up this week

[EDOC 1006 emphasis added].

Thus, the only remaining conditions to settlement were for Lend Lease and

Sponsor to approve, which they did. Contrary to plaintiffs’ arguments, there is nothing

equivocal about this language that includes the statement “we should be able to wrap this

up.” Nowhere does plaintiffs’ former counsel suggest there was anything additional that

needed to occur beyond the Sponsor’s approval.

Plaintiffs’ contention that the Sponsor changed the agreement at the last minute is

meaningless. This is because section C of the Settlement Agreement the parties

exchanged on May 23, 2024, containing the release, did not change [see Exhibit G to the

Affirmation of Andre Major, Esq, dated February 24, 2025 [EDOC 1008 pg 5 of

document (electronic page 6)]. This section, states that:

432 Park Board, Sponsor, Lendlease and the Settling Defendants understand that by signing this Settlement Agreement, they are releasing, fully, finally and forever, and as set forth more fully herein, all of their past, present and future claims against one another concerning or in any way relating to the Released Claims. In addition, 432 Park Board, Sponsor, Lendlease and the Settling Defendants hereby knowingly and voluntarily promise and covenant not to sue each other with respect to the Released Claims. 432 Park Board, Sponsor, Lendlease and the Settling Defendants understand that this Release ends, fully and forever, all Released Claims. By settling now, 432 Park Board, Sponsor, Lendlease and the Settling Defendants understand that they cannot later sue each other with respect to any damages that they may become aware of in the future which are the subject of the Released Claim

(emphasis added).

Any additional language the Sponsor may have suggested does not change the broad scope of

this release.

655617/2021 BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE Page 5 of 6 INDIVIDUAL UNIT OWNERS AND THE COMMERCIAL UNIT OWNERS ET AL vs. 56TH AND PARK (NY) OWNER, LLC ET AL Motion No. 025 026 027

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Finally, S&S and Skyline relied on this settlement and dropped out of participation in

discovery. Plaintiffs never suggested to these defendants that they might want to recommence

participation because there was no settlement. Plaintiffs’ argument that there was no authority

for plaintiffs’ former counsel to enter into this settlement because plaintiff is a board of directors

is a non sequitur that lacks support.

The court has considered the parties’ remaining contentions and finds them unavailing.

Accordingly, it is

ORDERED THAT the motion and cross motion in motion sequence 25 are denied

and motions 26 and 27 are granted.

202504~ABEGABC9F20EiblY8BEF1

4/17/2025 DATE MELISSA A. CRANE, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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