Deng v. 278 Gramercy Park Group, LLC

23 F. Supp. 3d 281, 2014 U.S. Dist. LEXIS 74156, 2014 WL 2440817
CourtDistrict Court, S.D. New York
DecidedMay 30, 2014
DocketNo. 12 Civ. 7803(DLC)
StatusPublished

This text of 23 F. Supp. 3d 281 (Deng v. 278 Gramercy Park Group, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deng v. 278 Gramercy Park Group, LLC, 23 F. Supp. 3d 281, 2014 U.S. Dist. LEXIS 74156, 2014 WL 2440817 (S.D.N.Y. 2014).

Opinion

OPINION AND ORDER

DENISE COTE, District Judge.

Plaintiffs Stephen Deng (“Deng”), Rouh-ong Jiang (“Jiang”), Ann Zemaitis (“Ze-maitis”), and Miguel Santiago (“Santiago”) bring this action against Norman Kaish (“Kaish”) and related corporate entities (“corporate defendants”), under Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 (“Exchange Act”); under Sections 12(a)(2), 15, and 17 of the Securities Act of 1933 (“Securities Act”); under Rule 506 of Regulation D of the Securities Act; and under various common law theories. The corporate defendants defaulted, and the claims against them were referred for andnquest on damages. Plaintiffs have now moved for partial summary judgment against Kaish on the Section 10(b) and Rule 10b-5 claim only. For the reasons explained below, plaintiffs’ partial summary judgment motion is granted.

BACKGROUND

The following facts are undisputed or taken in the light most favorable to the non-moving party, here the defendant. The plaintiffs consist of two couples who invested in a Manhattan real estate development project (“Project”) at different times. The first couple, Zemaitis and Santiago, invested in 2006. The second couple, Deng and Jiang, invested in 2008.

The Project was organized by defendant Kaish and Leonard Taub (“Taub”). The corporate defendants consist largely of corporate entities formed by Kaish and Taub to execute the Project. In July 2006, the Project issued a Private Placement Memorandum (“PPM”). As relevant here, the PPM lays out the following description of the Project:

• The Project intends to purchase a piece of land in the Gramercy neighborhood of Manhattan, New York, in order to develop residential condominiums, exclusive triplex residences, and commercial space.
• The PPM offers Class B shares in the Project, at a price of $110,000 per unit, and constituting 1/200 membership interest in the Project.
• The cost of the Project will be ap- • proximately $94.1 million, which includes purchasing the land, the air rights, construction costs, and other costs and expenses.
• “$11 million of the project cost will be covered by the equity raised through this offering.”
• The remaining costs will be covered by a mezzanine loan and a construction loan, in the amount of $14.6 and $70.6 million respectively.
[284]*284• “The Company believes it can rapidly obtain preliminary approval for a construction loan with a lien on the Property from commercial Banks (the ‘Lender’) in the amount of $70.6 ' million (the ‘Loan’).”
• The Development Group is entitled to an aggregate fee of 5% of the total cost of the Project.

The PPM also sets forth many risk factors, the most relevant of which are as follows:

• These securities “involve a high degree of risk, and should not be purchased by anyone who cannot afford a complete loss” of investment.
• “The Company requires substantial amounts of construction financing from banks to implement and complete the Project.”
• “The Company cannot be certain that such external financing will be available on favorable terms, or at all.”
• “The availability and terms upon which financing of the Project may be obtained are material to the Company’s operations and there can be no certainty that such financing, if available, will be on acceptable terms to the Company.”
• “Changes in national economic conditions ... may have a material adverse impact on the Company’s results of operations or financial condition.”
• “The net proceeds of this Offering will be used for, among other things, establishing sufficient working capital to obtain a construction loan and commence full-scale operations as well as other general corporate purposes. The Company’s Manager will have broad discretion as to how to apply the net proceeds of this Offering as well as complete discretion as to the application of day-to-day management of the Company and the Project.”

In August 2006, the Project purchased the land for approximately $17 million. The Project did so with a mortgage of $30.5 million from UBS Real Estate Investments, Inc. (“UBS”). The Project later used the remaining funds to purchase the air rights.

On or around August 2006, Zemaitis and Santiago learned of the Project. Taub called Zemaitis to advise her that the Project had room for investors and expected an 83.5% rate of return. Zemaitis and Santiago reviewed the PPM, which led them to believe that their investment would be used for the Project’s costs.

In November 2006, Zemaitis and Santiago agreed to become investors in the Project, and signed the Subscription Agreement and Investor Questionnaire. They purchased $880,000 worth of Class B Securities in the Project.

On Tuesday, November 14, the $880,000 was deposited in the Projects bank account. Within three days, ie., by Friday, November 17, virtually all of these funds had been withdrawn from the account. The intervening transactions consisted almost entirely of transfers from the Project to other corporate entities formed by Kaish or Taub.

In July 2007, UBS forwarded to the Project a loan application for construction financing up to $82 million and mezzanine funding in the amount of $11 million. The Project did not pursue any opportunities to obtain construction and mezzanine financing from other sources. At or around the same time, the Project obtained an increase from UBS of the August 2006 mortgage to $34 million, and the maturity date [285]*285was extended such that the balance was due and payable in full on August 2008.

In March 2008, Deng and Jiang learned of the Project. They were sent a document summarizing the Project details (“Project Summary”). The Project Summary is much shorter than the PPM, but it shares basic similarities: it describes the Project and its purpose; it describes the costs of the Project; and it sets forth that the proceeds raised in the equity offering would be used towards those costs, although these costs are somewhat higher than those reported in the PPM.

Significantly for present purposes, the Project Summary states (as did the PPM) that the “Company believes it can rapidly obtain preliminary approval for a construction loan with a lien on the Property from commercial Banks (the ‘Lender’) in the amount of $76 million (the ‘Loan’).” The Project Summary further states that investors can expect a rate of return of 83.5% and their invested capital returned within two and a half years. The Project Summary lacks the lengthy risk factors discussion set forth in the PPM. The Project Summary led Deng and Jiang to believe that, given the rapid approval of the construction loan, the Project was likely to achieve the 83.5% rate of return.

On or around the end of March, Deng and Jiang agreed to become investors in the Project, and signed the Subscription Agreement and Investor Questionnaire. They purchased $330,000 worth of Class B Securities in the Project.

On August 2008, the Project defaulted on the mortgage with UBS.

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Bluebook (online)
23 F. Supp. 3d 281, 2014 U.S. Dist. LEXIS 74156, 2014 WL 2440817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deng-v-278-gramercy-park-group-llc-nysd-2014.