WeWork Cos. LLC v Parkmerced Holdings Subsidiary LLC 2026 NY Slip Op 31006(U) March 16, 2026 Supreme Court, New York County Docket Number: Index No. 651708/2020 Judge: Andrea Masley 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.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.6517082020.NEW_YORK.003.LBLX036_TO.html[03/24/2026 3:45:48 PM] FILED: NEW YORK COUNTY CLERK 03/17/2026 09:28 AM INDEX NO. 651708/2020 NYSCEF DOC. NO. 357 RECEIVED NYSCEF: 03/16/2026
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48 -----------------------------------------------------------------------------------X WEWORK COMPANIES LLC, AS SUCCESSOR IN INDEX NO. 651708/2020 INTEREST TO WEWORK COMPANIES INC.,
Plaintiff, MOTION DATE -
-v- MOTION SEQ. NO. 006 PARKMERCED HOLDINGS SUBSIDIARY LLC, PARKMERCED INVESTORS, LLC, and JOHN DOES 1 DECISION + ORDER ON THROUGH 10, MOTION Defendants. -----------------------------------------------------------------------------------X
HON. ANDREA MASLEY:
The following e-filed documents, listed by NYSCEF document number (Motion 006) 215, 216, 217, 218, 219, 220, 312 were read on this motion to/for REARGUMENT/RECONSIDERATION .
Plaintiff WeWork Companies LLC (WeWork) moves pursuant to CPLR 2221(d)
for reargument of the court’s July 12, 2024 Decision on two grounds: (1) the court failed
to apply the law of restitution to WeWork’s claim for breach of the Exclusivity Provision1
and (2) the court mistakenly marked the case disposed when, in fact, WeWork’s claim
for breach of one of the four trigger provisions –the ground that WeWork was ready
willing and able to close but Parkmerced was not (¶ iii) -- survived defendants’ motion
for summary judgment. (NYSCEF Doc. No. [NYSCEF] 209, July 12, 2024 Decision.)
A motion for leave to reargue pursuant to CPLR 2221 “shall be based upon
matters of fact or law allegedly overlooked or misapprehended by the Court in
determining the prior motion.” (CPLR 2221 [d] [2].) However, “[r]eargument is not
designed to afford the unsuccessful party successive opportunities to reargue issues
1 The court adopts defined terms in the term sheet and from prior decisions. 651708/2020 WEWORK COMPANIES LLC, AS vs. PARKMERCED HOLDINGS Page 1 of 7 Motion No. 006
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previously decided … or to present arguments different from those originally asserted.”
(William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992] [internal
citations omitted].) The movant bears the initial burden on a motion to reargue a prior
decision pursuant to CPLR 2221. (See id.)
WeWork paid Parkmerced an exclusivity fee of $20 million for the right to
negotiate a $450 million investment in a residential development in San Francisco,
California. (NYSCEF 29, Amended Complaint ¶¶ 1,18.)
The July 12, 2024 decision resolved both summary judgment motions: WeWork’s
motion 003 for partial summary judgment on the Exclusivity Provision and Parkmerced
Holdings Subsidiary LLC and Parkmerced Investors, LLC’s (together, Parkmerced)
motion 004 to dismiss WeWork’s action in its entirety. (NYSCEF 209, July 12, 2024
Decision.)
In motion 004, Parkmerced moved to dismiss WeWork’s two contract claims
against Parkmerced: (1) that WeWork was ready willing and able to close but
Parkmerced was not because the predicate Natixis refinancing failed to close by
October 31, 2018 which triggered the refund provision (¶ iii) (RWA Claim) and (2) that
Parkmerced’s negotiations with Ascent violated the exclusivity provision which triggered
a refund of the $20 million to WeWork (Exclusivity Breach). The court denied
Parkmerced’s motion 004 but mistakenly marked the decision “case disposed.” (Id. at
13.)
As to WeWork’s partial summary judgment motion 003,2 the court found that
Parkmerced breached the Exclusivity Provision. However, the court denied WeWork’s
2 WeWork did not move for summary judgment on its “ready, willing and able” claim. 651708/2020 WEWORK COMPANIES LLC, AS vs. PARKMERCED HOLDINGS Page 2 of 7 Motion No. 006
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requested damages -- refund of the $20 million Exclusivity Fee -- because
ParkMerced’s breach of the Exclusivity Provision is not one of the four trigger provisions
for such a refund in the term sheet that is otherwise nonbinding. (NYSCEF 209,
Decision at 10/13.3) Rather, the court found that WeWork’s restitution theory
circumvented the clear term sheet which allows return of the $20 million Exclusivity Fee
in four limited instances. (Id. at 11.)
Both parties rightly criticize the court for marking the case disposed.
Parkmerced4 also objects to the court’s failure to address Parkmerced’s motion to
dismiss WeWork’s RWA Claim.5 The court denied Parkmerced’s motion without
explaining that it was an issue of fact as to whether WeWork was in fact ready, willing,
and able to close the transaction. (NYSCEF 209, July 12, 2024 Decision.) Clearly, the
case was not disposed since WeWork’s RWA Claim survived and WeWork’s attorneys’
fees claim was sent to a Special Referee. (Id. at 12-13.) At argument on this motion on
the record, the court granted WeWork’s motion 006 to the extent the case is restored to
the calendar. (NYSCEF 312, tr 2:11-22.) Accordingly, WeWork’s motion for
reargument is properly granted on this basis.
While the court reconsiders WeWork’s second argument for reargument,
WeWork’s motion for summary judgment on the refund of the Exclusivity Fee based on
Parkmerced’s breach is denied, again. WeWork asserts that since the court found
3 NYSCEF pagination. 4 Oddly, WeWork overlooks Parkmerced’s motion to dismiss the RWA Claim. 5 However, Parkmerced did not move for relief from the July 12, 2024 decision
(NYSCEF 209) and thus the court will not consider Parkmerced’s request to reconsider this court’s decision denying Parkmerced’s motion for summary judgment to dismiss WeWork’s Complaint in its entirety. Parkmerced made this request for the first time at argument on WeWork’s Motion 06 to reargue. (NYSCEF 312, tr 3:2-4:2:6:24-7:8.) 651708/2020 WEWORK COMPANIES LLC, AS vs. PARKMERCED HOLDINGS Page 3 of 7 Motion No. 006
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Parkmerced breached the Exclusivity Provision of the term sheet, the court’s denial of
damages, except attorneys’ fees, was based on the court’s misapprehension of the law
of restitution.
Since the court held that Parkmerced materially breached the Exclusivity
Provision, WeWork would be entitled to restitution damages including the $20 million
Exclusivity Fee. (RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST
ENRICHMENT § 37 (2011), Comment a [Restitution is “an alternative remedy for
breach of contract that is sometimes called ‘restitution’ but is more easily recognized
under the name ‘rescission.’”]). “The plaintiff entitled to a remedy for material breach or
repudiation potentially chooses between damages, specific performance, and
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WeWork Cos. LLC v Parkmerced Holdings Subsidiary LLC 2026 NY Slip Op 31006(U) March 16, 2026 Supreme Court, New York County Docket Number: Index No. 651708/2020 Judge: Andrea Masley 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.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.6517082020.NEW_YORK.003.LBLX036_TO.html[03/24/2026 3:45:48 PM] FILED: NEW YORK COUNTY CLERK 03/17/2026 09:28 AM INDEX NO. 651708/2020 NYSCEF DOC. NO. 357 RECEIVED NYSCEF: 03/16/2026
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48 -----------------------------------------------------------------------------------X WEWORK COMPANIES LLC, AS SUCCESSOR IN INDEX NO. 651708/2020 INTEREST TO WEWORK COMPANIES INC.,
Plaintiff, MOTION DATE -
-v- MOTION SEQ. NO. 006 PARKMERCED HOLDINGS SUBSIDIARY LLC, PARKMERCED INVESTORS, LLC, and JOHN DOES 1 DECISION + ORDER ON THROUGH 10, MOTION Defendants. -----------------------------------------------------------------------------------X
HON. ANDREA MASLEY:
The following e-filed documents, listed by NYSCEF document number (Motion 006) 215, 216, 217, 218, 219, 220, 312 were read on this motion to/for REARGUMENT/RECONSIDERATION .
Plaintiff WeWork Companies LLC (WeWork) moves pursuant to CPLR 2221(d)
for reargument of the court’s July 12, 2024 Decision on two grounds: (1) the court failed
to apply the law of restitution to WeWork’s claim for breach of the Exclusivity Provision1
and (2) the court mistakenly marked the case disposed when, in fact, WeWork’s claim
for breach of one of the four trigger provisions –the ground that WeWork was ready
willing and able to close but Parkmerced was not (¶ iii) -- survived defendants’ motion
for summary judgment. (NYSCEF Doc. No. [NYSCEF] 209, July 12, 2024 Decision.)
A motion for leave to reargue pursuant to CPLR 2221 “shall be based upon
matters of fact or law allegedly overlooked or misapprehended by the Court in
determining the prior motion.” (CPLR 2221 [d] [2].) However, “[r]eargument is not
designed to afford the unsuccessful party successive opportunities to reargue issues
1 The court adopts defined terms in the term sheet and from prior decisions. 651708/2020 WEWORK COMPANIES LLC, AS vs. PARKMERCED HOLDINGS Page 1 of 7 Motion No. 006
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previously decided … or to present arguments different from those originally asserted.”
(William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992] [internal
citations omitted].) The movant bears the initial burden on a motion to reargue a prior
decision pursuant to CPLR 2221. (See id.)
WeWork paid Parkmerced an exclusivity fee of $20 million for the right to
negotiate a $450 million investment in a residential development in San Francisco,
California. (NYSCEF 29, Amended Complaint ¶¶ 1,18.)
The July 12, 2024 decision resolved both summary judgment motions: WeWork’s
motion 003 for partial summary judgment on the Exclusivity Provision and Parkmerced
Holdings Subsidiary LLC and Parkmerced Investors, LLC’s (together, Parkmerced)
motion 004 to dismiss WeWork’s action in its entirety. (NYSCEF 209, July 12, 2024
Decision.)
In motion 004, Parkmerced moved to dismiss WeWork’s two contract claims
against Parkmerced: (1) that WeWork was ready willing and able to close but
Parkmerced was not because the predicate Natixis refinancing failed to close by
October 31, 2018 which triggered the refund provision (¶ iii) (RWA Claim) and (2) that
Parkmerced’s negotiations with Ascent violated the exclusivity provision which triggered
a refund of the $20 million to WeWork (Exclusivity Breach). The court denied
Parkmerced’s motion 004 but mistakenly marked the decision “case disposed.” (Id. at
13.)
As to WeWork’s partial summary judgment motion 003,2 the court found that
Parkmerced breached the Exclusivity Provision. However, the court denied WeWork’s
2 WeWork did not move for summary judgment on its “ready, willing and able” claim. 651708/2020 WEWORK COMPANIES LLC, AS vs. PARKMERCED HOLDINGS Page 2 of 7 Motion No. 006
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requested damages -- refund of the $20 million Exclusivity Fee -- because
ParkMerced’s breach of the Exclusivity Provision is not one of the four trigger provisions
for such a refund in the term sheet that is otherwise nonbinding. (NYSCEF 209,
Decision at 10/13.3) Rather, the court found that WeWork’s restitution theory
circumvented the clear term sheet which allows return of the $20 million Exclusivity Fee
in four limited instances. (Id. at 11.)
Both parties rightly criticize the court for marking the case disposed.
Parkmerced4 also objects to the court’s failure to address Parkmerced’s motion to
dismiss WeWork’s RWA Claim.5 The court denied Parkmerced’s motion without
explaining that it was an issue of fact as to whether WeWork was in fact ready, willing,
and able to close the transaction. (NYSCEF 209, July 12, 2024 Decision.) Clearly, the
case was not disposed since WeWork’s RWA Claim survived and WeWork’s attorneys’
fees claim was sent to a Special Referee. (Id. at 12-13.) At argument on this motion on
the record, the court granted WeWork’s motion 006 to the extent the case is restored to
the calendar. (NYSCEF 312, tr 2:11-22.) Accordingly, WeWork’s motion for
reargument is properly granted on this basis.
While the court reconsiders WeWork’s second argument for reargument,
WeWork’s motion for summary judgment on the refund of the Exclusivity Fee based on
Parkmerced’s breach is denied, again. WeWork asserts that since the court found
3 NYSCEF pagination. 4 Oddly, WeWork overlooks Parkmerced’s motion to dismiss the RWA Claim. 5 However, Parkmerced did not move for relief from the July 12, 2024 decision
(NYSCEF 209) and thus the court will not consider Parkmerced’s request to reconsider this court’s decision denying Parkmerced’s motion for summary judgment to dismiss WeWork’s Complaint in its entirety. Parkmerced made this request for the first time at argument on WeWork’s Motion 06 to reargue. (NYSCEF 312, tr 3:2-4:2:6:24-7:8.) 651708/2020 WEWORK COMPANIES LLC, AS vs. PARKMERCED HOLDINGS Page 3 of 7 Motion No. 006
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Parkmerced breached the Exclusivity Provision of the term sheet, the court’s denial of
damages, except attorneys’ fees, was based on the court’s misapprehension of the law
of restitution.
Since the court held that Parkmerced materially breached the Exclusivity
Provision, WeWork would be entitled to restitution damages including the $20 million
Exclusivity Fee. (RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST
ENRICHMENT § 37 (2011), Comment a [Restitution is “an alternative remedy for
breach of contract that is sometimes called ‘restitution’ but is more easily recognized
under the name ‘rescission.’”]). “The plaintiff entitled to a remedy for material breach or
repudiation potentially chooses between damages, specific performance, and
rescission, electing the remedy that promises the most favorable recovery at the lowest
cost.” (Id. § 54, Comment a.) Parkmerced breached first, repudiating the Exclusivity
Provision which relieved WeWork of its obligations, if any, under the nonbinding term
sheet. (See Ergonomic Sys. Philippines Inc. v CCS Int'l Ltd., 7 AD3d 412, 413–14
[2004] [“Since defendant's performance of its obligation to respect plaintiff's exclusive
marketing rights was a condition to plaintiff's performance of its remaining duties under
the agreement becoming due, plaintiff's performance of such duties (including the duty
to make the scheduled payments) did not become due while defendant was in breach of
the agreement by reason of the [other exclusive] agreement with Lazatin.”].) Here, the
only provision that survives the nonbinding term sheet provides that the Exclusivity Fee
will be refunded to WeWork in four instances, one of which is Parkmerced’s “(i) …fraud,
gross negligence or willful misconduct,” not breach of contract. (See N. Star
Contracting Corp. v City of New York, 203 AD2d 214, 215 (1st Dept 1994) [“Although
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such a no-damage-for-delay clause will not preclude recovery for damages resulting
from the City's intentional wrongdoing, gross negligence or willful misconduct.”])
However, in the term sheet, the parties limited such a refund of the Exclusivity Fee to
four instances, not including breach of the Exclusivity Provision itself. “Such clauses
[limiting damages] have been found valid and preclude recovery of damages resulting
from a broad range of reasonable and unreasonable conduct, where, as here, the
conduct was specifically contemplated by the parties when they entered into the
agreement.” (N. Star Contracting Corp, 203 AD2d at 214–15.) While the record is
silent as to why these sophisticated parties limited the refund of the Exclusivity Fee to
these four instances, based on the four instances for refund, the court cannot find that
the parties did not contemplate which conduct should trigger a refund.
This decision is consistent with the Appellate Division’s affirmance of dismissal of
the related action Parkmerced Invs., LLC v WeWork Companies LLC, 217 AD3d 531
(2023) on WeWork’s motion to dismiss.6 Significantly, the court affirmed that the term
sheet is not binding except for the trigger provisions pursuant to which the Exclusivity
Fee is refunded to WeWork; otherwise, it is not refundable. (Id.) Parkmerced’s claims
did not fall under any of the four provisions which all pertain to refunding the Exclusivity
Fee to WeWork. Although WeWork’s claims are not mirror images of Parkmerced’s
claims, the Appellate Division’s decision dictates that refund is not a remedy for
Parkmerced’s breach of the Exclusivity Provision because it is not one of the four limited
instances when the Exclusivity Fee can be refunded.
6 In this case, the court dismissed WeWork’s unjust enrichment claim. (NYSCEF 58, Decision on motion 001.) WeWork did not appeal. 651708/2020 WEWORK COMPANIES LLC, AS vs. PARKMERCED HOLDINGS Page 5 of 7 Motion No. 006
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The court’s mistake was in overlooking WeWork’s remaining RWA Claim which
proceeds, unlike Parkmerced’s claims, because it falls under the term sheet’s four
surviving refund provisions. It did not overlook the law on restitution; the court rejected
WeWork’s argument and does so again today
Accordingly, it is
ORDERED that WeWork’s motion for reargument is granted to the extent that the
action is restored to the calendar for trial on WeWork’s RWA Claim and otherwise
denied; and it is further
ORDERED that the General Clerk’s Office is directed to restore this action to the
court’s calendar; and it is further
ORDERED that WeWork shall serve a copy of this order with notice of entry in
accordance with the procedures set forth in the Protocol on Courthouse County Clerk
Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the
court’s website – www.nycourts.gov/supctmanh) upon the Clerk of the General Clerk’s
Office; and it is further
ORDERED that by March 30, 2026 parties shall review the Part 48 Trial
Procedures and submit a list of witnesses and estimates for how long each witness will
testify considering that it will be a bench trial (NYSCEF 62, Note of Issue); and it is
further
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ORDERED that the court will hold the trial scheduling conference on April 1,
2026, at which the court will either set a briefing schedule for motions in limine or a trial
date.
3/16/2026 DATE ANDREA MASLEY, 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
651708/2020 WEWORK COMPANIES LLC, AS vs. PARKMERCED HOLDINGS Page 7 of 7 Motion No. 006
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