

Elmrock Opportunity Master Fund I, L.P. v Citicorp N. Am., Inc. (2019 NY Slip Op 07848)





Elmrock Opportunity Master Fund I, L.P. v Citicorp N. Am., Inc.


2019 NY Slip Op 07848


Decided on October 31, 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 October 31, 2019

Renwick, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.


10063 653300/16

[*1] Elmrock Opportunity Master Fund I, L.P., Plaintiff-Appellant,
vCiticorp North America, Inc., et al., Defendants-Respondents.


Kaplan Fox & Kilsheimer LLP, New York (Gregory K. Arenson of counsel), for appellant.
Goodwin Procter LLP, New York (Marshall H. Fishman of counsel), for respondents.

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered January 15, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on its claim for breach of contract and plaintiff's request for attorneys' fees and costs, and granted partial summary judgment to defendants, unanimously affirmed, without costs.
Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on is breach of contract claim or, that an issue of fact exists for trial. The record unequivocally demonstrates that the disputed $123,271,899 settlement payment was for "Basic Rent" due under certain facility leases through July 1, 2017. As such, this sum was properly excluded from the valuation of the "Option Property," as defined in plaintiff's option agreements.
Plaintiff may not recover attorneys' fees and costs (UBS Sec. LLC v RAE Sys. Inc., 101 AD3d 510 [1st Dept 2012], lv denied 20 NY3d 861 [2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 31, 2019
CLERK


