INDEX NO.

651211/2014

FILED: NEW YORK COUNTY CLERK 03/28/2016 11:53 AM

NYSCEF DOC. NO. 39

RECEIVED NYSCEF: 03/28/2016

Friedman,

J.P., Sweeny, Richter,

Gische,

JJ.

489

East Harlem Abyssinian Triangle

Corporation,
Plaintiff-Appellant,

Index 651211/14

-againstNew York City Economic Development

Corporation,
Defendant-Respondent.

windels Marx Lane & Mittendorf,

of counsel), for appellant.
Zachary w. Carter, Corporation
of counsel), for respondent.

Order and judgment

County

LLP, New York

Counsel,

(one paper),

defendant

the complaint

to transfer

East Harlem Abyssinian

Triangle

plaintiff,

affirmed,

EHAT LP's governing

entered

into between

acquiring

certain

supermarket.
paying

City-owned

that

its 49% interest

Limited
without

Partnership

in the

(EHAT LP) to

costs.
agreement

was

in 1995 for the purpose

real property

The EHAT LP purchased

an amount

9, 2014,

and declaring

limited partnership

the parties

(Jane L. Gordon

Court, New York

October

with prejudice

is not obligated

unanimously

New York

Supreme

(Charles E. Ramos, J.), entered

dismissing

(Scott R. Matthews

in cash and giving

secured by a note for the remainder;

33

1 of 4

of

on which to develop

the property
a purchase
it entered

from defendant,

money mortgage
into arrangements

with other lenders,

funds needed

including

for the development

The partnership
purchase

agreement

defendant's

community-based

a "Prohibited

to resolve

for $1.00, but only in

its interest

to a
has

has never transferred

to a community-based

2005, plaintiff

in acquiring

loan.

adopted

agreements,

organization,

agreement

or

its
the

was never triggered.

wrote to defendant

defendant's

In February
a resolution

including

plaintiff

for $1.00,

in consideration

partnership,

2006, defendant's
authorizing

a transfer

concerning
and the need

in connection

the February
defendant's

interest

interest

with the proposed

for, inter alia, prepayment

2006 resolution

Executive

its president

of defendant's

of the amount owed on the purchase

proposal,

to

the issue of the "option" so that it could refinance

the Citibank
Committee

an option

and that that organization

by the partnership

In November
its interest

interest

As defendant

interest

option granted

to obtain

Person" under the terms of the agreement

has ceased to exist.

partnership

grants plaintiff

has transferred

organization

from Citibank,

project.

partnership

the event that defendant

become

a mortgage

to

refinancing,

by EHAT LP of part

money mortgage

authorized

to enter

note.

the transfer

Because

of

only as part of a larger refinancing

the resolution

did not "comply with the terms of

34

2 of 4

[any]

c
I

offer" by plaintiff
counteroffer"

719

to a rejection

(Lamanna v Wing Yuen Realty,

[1st Dept 2001]

NY2d

and was "equivalent

[internal quotation

283 AD2d 165, 166

marks omitted],

resolution

that the agreements

were never negotiated

refinancing

never implemented.

defendant's

offer to transfer

96

listed in the 2005

and the proposed

Thus, plaintiff

its interest as part of a

in compliance

Silber

York Life Ins. Co., 92 AD3d 436, 440

v New

Moreover,

plaintiff,

without

the transfer

contemplated
interdependent

with the terms of the offer

even if the February

on defendant

as part of the proposed

3 of 4

[1st Dept
was

of acceptance

by

interest was only

refinancing,

therefor,

35

(see

2006 resolution

any manifestation

of defendant's

consideration

2006

never accepted

refinancing,

binding

Iv denied

[2001])

It is undisputed

2012]).

and

with

and thus was not severable

.'

from the proposed

refinancing

or separately

First Sav. & Loan Assn. of Jersey

Assur.

Co., 29 NY2d 297

We have considered

enforceable

(see

City, N.J. v American

Home

[1971]).
plaintiff's

remaining

arguments

and find

them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

MARCH

15, 2016

36

4 of 4

CLERK