Preview
FILED: NEW YORK COUNTY CLERK 11/10/2014 08:39 PM INDEX NO. 151330/2014
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/10/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID L. ABRAMSON, M.D. and Index No. 151330/14
SCOT BRADLEY GLASBERG, M.D.,
Plaintiffs,
AFFIRMATION OF ERIC D.
V. SHERMAN IN FURTHER
SUPPORT OF PLAINTIFFS'
74TH LLC and BEN HELLER, MOTION FOR SUMMARY
JUDGMENT
Defendants.
ERIC D. SHERMAN, an attorney duly admitted to practice law in the Courts of the
State of New York, affirms the following to be true under penalty of perjury:
1. I am a member of Pryor Cashman LLP, attorneys for plaintiffs David L.
Abramson, M.D. and Scot Bradley Glasberg, M.D. ("Tenants" or Plaintiffs") in this action. As
such, I have personal knowledge of and am fully familiar with, the facts and circumstances set
forth herein.
2. I respectfully submit this affirmation in further support of Plaintiffs' motion for
summary judgment, pursuant to CPLR 3212, for an Order: (i) granting Plaintiffs summary
judgment on their first cause of action for a declaratory judgment adjudging that Plaintiffs are
entitled to a declaration that (a) the Notice of Termination of Lease dated March 5, 2014 remains
in full force and effect; (b) Defendants must pay Plaintiffs nine (9) times the monthly Base Rent
as set forth in Article 61(C) of the Lease at issue, upon Plaintiffs' vacatur of the Premises on
December 31, 2014; (c) the Withdrawal of Notice of Termination of Lease dated March 26, 2014
is null and void; (d) Plaintiffs are not in default of their obligations under the Lease; and (ii)
granting Plaintiffs such other and further relief as the Court deems just and proper.
PRELIMINARY STATEMENT
3. In its opposition papers, Landlord does not dispute, because it cannot dispute, the
following facts:
• Landlord attempted to unilaterally withdraw the Notice of Termination. See Glasberg
Aff., Exhibit "K."
• Neither the Lease provision at issue nor any other provision in the Lease permits
Landlord to withdraw the Notice of Termination. See Glasberg Aff., Exhibit "A."
• Indeed, the Lease expressly permits Landlord to withdraw other notices, but not the
Notice of Termination. See Glasberg Aff., Exhibit "A."
• Tenants never consented to the withdrawal of the Notice of Termination; and to be sure,
Landlord and Tenant never consented to a modification of the Lease.
4. Because Landlord cannot dispute the foregoing, it invokes the typical arguments
in opposition to a summary judgment motion.
5. For example, Landlord argues, incorrectly, that more discovery is needed before
the Court may properly evaluate Tenants' motion. See Stewart Aff., 147-56.
6. In reality, there is absolutely no further discovery necessary to decide this motion.
Establishing liability on the remaining causes of action may or may not benefit from depositions,
but the cause of action for a declaratory judgment before the Court on this motion, requires
absolutely no discovery at all.
7. The Offer Notice, the Notice of Termination and the Withdrawal of Notice of
Termination are all this Court needs to decide the discrete legal issue before it: whether the Lease
and relevant case law permit the Landlord, a commercial landlord, the right to serve a notice
cancelling Tenants' leasehold interest and then turn around and unilaterally cancel that notice.
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8. Even a cursory read of Defendants' papers reveals that they cannot point to one
scintilla of information or one document that would necessitate any further discovery. Instead,
Landlord simply repeats its baseless mantra that more discovery is necessary, without more.
9. On the topic of discovery, Plaintiffs take special exception to Landlord's tactic of
exploiting defendant Ben Heller's health condition in order to avoid summary judgment.
Plaintiffs have been asking for Landlord's deposition for months and months. Defendants
repeatedly dodged, evaded and ignored those requests for a deposition. See Exhibit "A".
10. Then, after repeatedly evading or ignoring those requests, Defendants announced
that Landlord had suffered a stroke. That was in August 2014.
11. Now Defendants have purported to delay indefinitely Mr. Heller's deposition by
producing a doctor's note in which it is claimed that Mr. Heller is unavailable "indefinitely" for
his deposition. Plaintiffs will of course respect that note if it turns out to be credible, although
Plaintiffs have their serious doubts. (A true and correct copy of such letter is attached hereto as
Exhibit "B").
12. But to now claim that Plaintiffs are the ones exploiting Mr. Heller's condition is
outrageous and sanctionable. The correspondence in the record speaks for itself. And it is
equally disingenuous to suggest that Mr. Heller, who presumably is able to communicate, is
unable to offer any views that would affect the outcome of this motion. Putting aside that there
is no evidence in the record that he cannot communicate, there nothing in this fact pattern to
indicate that anything he could say would have any effect on this motion. And to be sure, Heller
was well aware of Plaintiffs' position articulated in this motion months before his apparent
stroke.
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13. It is flatly disingenuous for Landlord to suggest that Plaintiffs have not been
forthcoming with discovery. Plaintiffs repeatedly were forced to send good faith / meet and
confer letters to Defendants after they repeatedly failed to timely respond to demands. See
Exhibit "C".
14. Indeed, the only paper discovery-related issue remaining in this case almost
exclusively relates to the heat issue, and more particularly, HIPAA-related concerns to the extent
Landlord seeks the identities of patients affected by the stifling temperatures in the Premises. A
true and correct copy of the Court's Order from the July 23, 2014 Compliance Conference is
attached hereto as Exhibit "D".
15. Next, Landlord also falsely alleges that Plaintiffs "successfully thwarted" (Stewart
Aff., ¶2) Landlord's alleged "efforts to sell the property." First of all, this is false. But more
relevant for this motion is that even if it were true, it would not matter for the purposes of this
motion.
16. And in any event, Defendants' document production evidences the exact opposite
to be true: the potential buyer of the Building was well aware of Tenants' Lease term and
accepted as a possibility in the contract drafted by the parties that possession of the Building
would occur after the end of Tenants' original Lease term at the April 2015. See Exhibit "E".
17. To repeat, despite Defendants' attempts to create factual issues where none exist,
the following facts remain undisputed:
The Lease provides that if Landlord desires to sell the Building during the term of the
Lease, Landlord must provide Tenants with written notice of any proposed sale prior
to offering the Building for sale to any third party. Glasberg Aff., Exhibit "A".
- On or about November 27, 2013, Landlord delivered to Tenants the official Offer
Notice that triggered Tenants' right of first refusal, pursuant to Article 61(B) of the
Lease.
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Tenants did not exercise its right to purchase the Building.
On or about March 5, 2014, Landlord delivered its formal 'notice of termination' of
the Lease, in accordance with Article 61(C) of the Lease, by which Landlord elected
to terminate the Lease effective September 10, 2014 (that date being six (6) months
following the date of the notice).
Subsequent to Landlord serving Tenants with the Notice of Termination dated March
5, 2014, Tenants relied on the Notice of Termination and commenced an extensive
search for alternative medical office space.
On or about March 26, 2014, three weeks after servings its Notice of Termination,
Landlord improperly served Tenants with the Withdrawal of Termination of Lease.
A. Notwithstanding Defendants' Baseless Assertion, the Lease Does Not Allow
Landlord to Unilaterally Withdraw the Notice of Termination of Lease
18. Because there is no language permitting Defendants to withdraw the Notice of
Termination, they resort to the argument that nothing prohibits them from doing it. (Stewart Aft,
¶46). That argument is absurd on its face. The proper analysis is whether the express, relevant
terms of the Lease permit Landlord to do so. The answer is in the negative:
In the event that at any time during the term, Owner shall propose to sell the
building to a third party, (subject to Tenant's right to purchase the building from
the named Owner as provided in the preceding Paragraph), Owner shall have the
right to terminate this Lease effective as of the date that occurs six (6)
months following written notice to Tenant (the "Termination Date"). If
Owner elects to terminate this Lease as aforesaid, Owner shall pay Tenant a
termination payment equal to nine (9) times the monthly Base Rate payable
during the Lease year in which the Termination Date shall occur. Such
termination payment shall be payable by bank check or certified check on the date
that Tenant shall vacate the Premises in accordance with Article 22 hereof. On
the Termination Date, the Term shall expire in the manner and with the
same force and effect as if it where the date set for the expiration of this
Lease (...)." [Glasberg Aff, Ex. "A [emphasis added].
19. The fact that the Lease does not "limit ... Defendants' right to withdraw" (1f46,
Stewart Aff.) the Notice of Termination, does not mean that Defendants are allowed to withdraw
the Notice of Termination, as evidenced by the case law cited by Plaintiffs and general contract
principles that require mutual assent of both parties for any contract modification, which is really
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what Defendants are attempting to read into the Lease. See East Port Excavation & Utilities
Contractors, Inc. v. Stoneridge Homes, Inc., No. 000182-08, 2009 N.Y. Misc. LEXIS 4303, at *9
(Sup. Ct. Aug. 13, 2009).
20. The Lease was extensively negotiated between sophisticated parties and their
counsel and does not include any right to withdraw notices of termination after they are served.
21. Moreover, well-settled New York law supports Plaintiffs' position, namely that a
contract must be enforced according to the express terms of the agreement: "[in] cases of
contract interpretation, it is well settled that when parties set down their agreement in a clear,
complete document, their writing should. . . be enforced according to its terms (Vermont Teddy
Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475 [2004], quoting W.W.W. Assoc. v.
Giancontieri, 77 N.Y.2d 157, 162 [1990])." South Rd. Assocs., LLC v. IBM, 4 N.Y.3d 272, 277-
78 (2005) (quotation omitted).
B. Further Supporting Tenants' Position Is
The Doctrine Of Expressio Unius Est Exclusio Alterius
22. As Plaintiffs demonstrated in their moving papers, the Lease provides that if
Tenant waives the right to purchase the Building by not delivering written notice of its election
to do so, Landlord is expressly afforded the right to withdraw the Building from the market prior
to serving the Notice of Termination:
"... it being expressly understood that the foregoing option to purchase the
Building shall be a "one-time" option and that if Tenant shall waive its rights as
aforesaid, Owner shall be free to withdraw the building from the market or to
sell the building on any terms Owner sees fit." [Glasberg Aff, Exhibit "A",
Section 61(B)] [emphasis added].
23. However, in the section addressing termination of the Lease, there is no language
affording Landlord the right to withdraw the Notice of Termination. (Glasberg Aff, Exhibit "A",
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Section 61(C) of the Lease). In sum, when the parties intended for Landlord to have the option
of withdrawing a notice, the Lease expressly stated so.
24. Though Defendants attempt to distinguish these two provisions in their opposition
papers (i.e., sections 6I(b) and 61(C)), the fact is that when the parties allowed for a unilateral
withdrawal by one of the parties without the other parties consent, they specifically said so in the
Lease.
25. In that regard, despite Defendants' unsupported assertions (Stewart Aff., 1 42-45),
the doctrine of expressio unius est exclusio alterius dispositively supports Plaintiffs' position
that the Notice of Termination may not be withdrawn. If parties omit terms that are readily
found in other contractual provisions, the "inescapable conclusion is that the parties intended the
omission." Quadrant Structured Prods. Co. V. Vertin, 23 N.Y.3d 549, 560 (2014).
26. Further, it bears repeating that a fundamental principle of contract law provides
that contracts cannot be modified except by mutual assent of both parties. Allowing Landlord to
unilaterally modify the terms of the Lease would be tantamount to permitting Landlord to
unilaterally modify one of the most substantial provisions of the lease agreement: its duration.
See East Port Excavation & Utilities Contractors, Inc. v. Stoneridge Homes, Inc., No. 000182-08,
2009 N.Y. Misc. LEXIS 4303, at *9 (Sup. Ct. Aug. 13, 2009). In their opposition, Defendants
do not allege, because they cannot allege, that Tenants ever consented to the withdrawal of the
Notice of Termination and that the parties ever consented to a modification of the Lease.
C. Landlord's Earlier Act of Serving and Withdrawing
a Notice of Termination Was Based on Incorrect
Tax Statements and is Irrelevant to this Motion
27. Perhaps the best example of Defendants' intellectual dishonesty in their
opposition papers is their assertion that Plaintiffs had previously accepted a notice of termination.
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Here, they are actually referring to the Notice of Termination of Lease and Acceleration of Rent
that Defendants served pursuant to Article 42 of the Lease. Stewart Aff., ¶ 41. Defendants'
argument that since Plaintiffs had accepted the withdrawal of such notice of termination, they
have somehow consented to the Withdrawal of the Notice of Termination of the Lease, is absurd
on its face. Defendants' allegation that the parties "historically permitted the revocation of
notices under the Lease" is false and outrageous, and unsupported by all the documentary
evidence that is in the record. Stewart Aff., 1111.
28. As previously stated, the Notice to Cure and subsequent Notice of Termination of
Lease and Acceleration of Rent, dated February 4, 2014, were prepared using incorrect
information, as expressly admitted by Defendants' counsel in his Affidavit (Smith Aff., ¶8). To
state the obvious, Tenants "accepted" Landlord's withdrawal of those incorrect notices as
Tenants' counsel had in fact advised Landlords' counsel that the Notice to Cure and subsequent
Notice of Termination of Lease and Acceleration of Rent. These were notices of default. They
threatened termination of the Lease based on nonpayment.
29. Thus, the fact that Plaintiffs had "accepted" a "withdrawal of a prior Notice of
Termination" is completely irrelevant to this motion. There has been no "history" of Tenants
accepting Landlord's withdrawal of notices of termination, as Defendants falsely allege.
Landlord was attempting to terminate the Lease based on a purported breach using incorrect tax
statements, so clearly any withdrawal of that notice would not be rejected. Glasberg Aff,
Exhibits "E" and "G"."
30. Further, the case law Plaintiffs cite in their moving papers specifically clarifies
that a notice of termination "cannot be withdrawn without the consent of both parties." Plaintiffs
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have filed this motion precisely because they have not consented to Defendants' purported
withdrawal of the Notice of Termination on March 26, 2014. 1
D. Defendants Fail to Inform this Court that They
Explained the Deficiencies in their Offer Notice
31. Though Defendants say that Plaintiffs initially sought a declaration that the
"initial notices that the Defendants wished to sell the building, delivered in November 2013,
were improper" and that Defendants in their First Amended Complaint "reverserdr their course,
they purposefully omit from their papers that on March 5, 2014, Defendants clarified all the
issues raised by Plaintiffs in a way that left Plaintiffs satisfied that the Offer Notice was
compliant with Article 61(B) of the Lease:
"According to the allegation in the Complaint, Owner was obligated to
deliver its official notice before offering the Property for sale to any third
party. It is not possible for a tenant to exercise a right of first refusal in
connection with an offer unless and until a bona fide offer from a
perspective purchaser has been made, If no offer from such a third party
exists, there is nothing for a tenant with a right of first refusal to accept or
refuse. Since Article 61B provides for a notice to be given to the Tenant
by Owner before the Property is even offered to a third party, it is clear
that the intention of Article 61B is to create for the benefit of Tenant a
right to make a first offer and not a right of first refusal. The letter dated
November 11, 2013, which is annexed to the Complaint as Exhibit E, is
signed by Ben Heller for 74 th LLC. As required under Article 61B, the
letter gives Tenant the right to make an offer to purchase the
Property for a specified price, with no financing contingency,
Although the letter states that 74 th LLC had just listed the Property for sale
with Brown Harris Stevens, as of the date of the letter, the Property had
Within this context, there is one particularly egregious misrepresentation in Defendants' opposition that I wish to
call to the Court's attention. Although it has no bearing on this motion, Defendants falsely assert in the Smith
Affidavit (presumably to muddy the waters) that Defendants were willing to withdraw the Notice of Termination of
Lease and Acceleration of Rent (the notice alleging default), but that Plaintiffs nonetheless filed the Complaint. See
Smith Aff, lj 9. That is flatly false. After I advised counsel that the notices were incorrect, counsel advised me that
his clients specifically indicated that Defendants wereunwilling to withdraw the Notice to Cure and subsequent
Notice of Termination of Lease and Acceleration of Rent absent some documentation bearing out the specifics of the
inaccuracies we attempted to point out. With Landlord having refused to do so, and because these notices
threatened Tenants' livelihood, we filed the complaint on February 13, 2014 on behalf of Tenants. On March 5,
2014, subsequent to the commencement of this action and only after Landlord was served with Tenants' Complaint,
Landlord's attorney finally withdrew the Notice to Cure and Notice of Termination of Lease and Acceleration of
Rent, expressly admitting that it had used incorrect information when preparing such notices ("It is true that the Tax
Statements were prepared using incorrect information"). Glasberg Aff., Exhibit "H."
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not yet been offered for sale by Brown Harris Stevens. Accordingly, the
requirements of Article 61B have been satisfied by the Owner.
Tenant did not exercise its option to make a first offer to purchase the
Property within thirty days after the date of the letter. In fact, as
recently as two weeks ago, you informed me that Tenant has no interest in
purchasing the Property." [Glasberg Aff, Exhibit "H"][emphasis added].
32. This explanation proffered by Defendants makes it clear that they had considered
and evaluated Tenants' objections, that they had rejected those arguments and that they were
exercising their right to terminate the Lease prematurely through service of the Notice of
Termination. Landlord chose this path. Landlord cannot now be heard to complaint that any
action or inaction on the part of Tenants somehow caused a sale to go through. If Landlord
believed that was the case, Landlord easily could have refrained from serving the Notice of
Termination, but it did not do so.
E. Defendants Fail to Offer a Single Case to Refute the
Proposition that Once A Valid Notice To Terminate
Is Exercised, The Party To Whom It Was Given May Rely Upon It
33. As Plaintiffs demonstrated in their moving papers, pursuant to applicable case law,
when a valid notice to terminate is given by a party, the party to whom it is given may rely upon
it, and it may not be withdrawn without the consent of both parties. Shapiro v. Childs, 222 Mo.
App. 1126, 1132 (1929) (citations omitted); Housing Auth. of Portland v. Martini, 141 Ore. App.
1 (1996); Livbros L.L.C. v. Vandenburgh, 179 Misc. 2d 736 (Civ. Ct. Kings Cty. 1999) (holding
that since tenant's election to terminate the tenancy was explicit, such party could not simply
retract its voluntary termination; Devonshire v. Langstaf, 10 Cal. App. 2d 369, 374 (1935)
(quoting Western Union Tel. Co. v. Pennsylvania R. Co., 120 F. 362 (C.C.D. Pa. 1903)
(quotations omitted) (holding that "[w]hen a valid notice to quit is given by the landlord or tenant
the party to whom it is given is entitled to count upon it, and it cannot be withdrawn without the
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consent of both parties. If such consent is given, there is a new agreement between the parties
and a new tenancy is created, which exists only under that new agreement").
34. Defendants do not refer to any analogous cases to challenge this proposition.
35. The sole case cited by Defendants, which they evidently cite for the proposition
that notices of termination "generally may be withdrawn even after an action has been filed," is
completely misconstrued. Stewart Aff., If 39. In that case, captioned Eve & Mike Pharmacy, Inc.
v. Greenwich Pooh, LLC, the court merely states that landlord "withdrew" the notice of
termination. But the court does not analyze whether the withdrawal of the notice was proper
and/or whether the other party consented to that withdrawal. 107 A.D.3d 505, 505 (1st Dep't
2013).
36. Thus, reliance on that case entirely misplaced.
F. Although Irrelevant to this Motion,
Tenants Have Satisfactorily
Demonstrated Reliance on the Notice of Termination
37. Defendants do not cite to any authority for the proposition that the notice may be
revoked absent detrimental reliance. This again suggests that there is no case law to support
Defendants' assertions. The Termination Notice is irrevocable absent consent of both parties,
irrespective of whether Tenants detrimentally relied upon the notice.
38. To be sure, once Tenants were served with the Notice of Termination, they
reasonably relied on Landlord's Notice of Termination. Tenants commenced a search for an
alternative office space, and engaged Wexler Healthcare Properties as their broker, which they
have continued up to this date. See Glasberg Aff. , Exhibit "J."
39. But in all events, the issue of whether Tenants reasonably relied on the Notice of
Termination is irrelevant. Nothing asserted by Defendants in their opposition papers changes the
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fact that Defendants chose to terminate the Lease and that the Lease will irrevocably terminate
on December 31, 2014 based on Defendants' voluntary election and the course they charted.
Having chosen that path, they now must abide by their choice.
40. Finally, Defendants improperly cite to case law involving ambiguous lease
provisions in order to create an issue of fact with respect to whether the Lease permits
withdrawal of the notice. But here, the Lease is clear and unambiguous. (136-7, Stewart Aff.)
The Court therefore should reject that attempt to suggest ambiguity: "[p]arties to a contract may
not create an ambiguity merely by urging conflicting interpretations of their agreement." Mount
Vernon City School Dist. v. Nova Cas. Co., 30 Misc. 3d 1233(A), 2009 N.Y. Misc. LEXIS 6599,
at ***32 (Sup. Ct. 2009), aff'd, 78 A.D.3d 1028 (2d Dept 2010), gild, 19 N.Y.3d 28 (2012)
(citation & quotations omitted).
41. Similarly, courts have repeatedly held that the contract must be read as a whole,
even where one particular provision is arguably ambiguous:
Although the parties dispute the meaning of specific contract clauses, our
task is to determine whether such clauses are ambiguous when "read in the
context of the entire agreement." By examining the entire contract, we
safeguard against adopting an interpretation that would render any
individual provision superfluous. Parties to a contract may not create an
ambiguity merely by urging conflicting interpretations of their agreement.
Sayers v. Rochester Tel. Corp. Supplemental Mgmt. Pension Plan,7 F.3d 1091, 1095 (2d
Cir. 1993) (internal citations omitted).
G. There are no Outstanding Discovery Issues Relevant to this Motion
42. Contrary to Defendants baseless assertions, there are no discovery disputes even
remotely relevant to this motion.
43. For Defendants to successfully oppose summary judgment on the grounds of
insufficient discovery, they have to "'produce some evidence indicating that further discovery
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will yield material and relevant evidence' Heritage Hills Soc'y, Ltd. v. Heritage Development
Group, Inc., 56 A.D.3d 426, 427 (2d Dep't 2008), quoting Fleischman v. Peacock Water Co., 51
A.D.3d 1203, 1205 (3d Dep't 2008); See also Hayden v. City of New York, 26 A.D.3d 262 (1st
Dep't 2006) ("[P]laintiff failed to show that the representatives already deposed had insufficient
knowledge or were otherwise inadequate, or that further discovery was warranted by reason of a
substantial likelihood that additional persons sought for deposition possessed information
material and necessary to oppose the motion") (citations omitted); Korie v. 27 W. 71st St., LLC,
No. 102567/08, 2009 N.Y. Misc. LEXIS 5055, at *32-34 (Sup. Ct. Nov. 9, 2009) (Court granted
summary judgment holding that plaintiff provided no evidence indicating that further discovery
will yield material and relevant evidence).
44. Here, Defendants have failed to produce any, evidence indicating which
information any further discovery will yield that is even remotely relevant to this motion.
45. As to Defendants' assertion that Plaintiffs withheld documents based on an
assertion of privilege, is refuted by the documents themselves as the documents redacted by
Plaintiffs have absolutely nothing to do with this motion. In fact, the only documents that were
redacted by Tenants consisted of email communications among Tenants and their counsel,
attaching the checks that referred to payments of rent. Tenants produced all the documents
attached to those privileged communications. (A true and correct copy of the documents
redacted and produced by Plaintiffs are attached hereto as Exhibit "F").
46. For that reason, Defendants' assertion that certain documents were redacted by
Tenants without a privilege log (Stewart Aff., ¶51) also fails, Indeed, Defendants complain that
Tenants have not yet produced a privilege log while they have failed to do so.
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47. Further, it is not clear how documents relating to the claim that "Plaintiffs operate
one of the tri-state's most successful plastic surgery practices" and "that the alleged temperature
issue harmed their practice or drove patients away" could be even remotely relevant to Plaintiffs'
present motion. (Stewart Aff., '753). Also totally irrelevant is the question of whether Tenants
had the financial wherewithal to acquire the Building. (Stewart Aff. , ¶53). That is an utter red
herring and perfectly irrelevant not only to this motion, but to this action entirely. Tenants never
exercised the option.
H. Mr. Heller's Physical Condition Not Only is Irrelevant
to this Motion. It is Totally Improper for Defendants Even to Raise It
48. As to Mr. Heller and his apparent condition, Plaintiffs sought to depose Mr.
Heller for months and months. Defendants repeatedly dodged, evaded and ignored those
requests for a deposition. A true and correct copy of the communications are attached hereto as
Exhibit "A." Then, after repeatedly evading or ignoring those requests, Defendants announced
that Landlord had suffered a stroke and that Landlord was unable to be deposed. Now
Defendants have purported to delay indefinitely Mr. Heller's deposition by producing a doctor's
note that purports to claim that Mr. Heller is unavailable "indefinitely" for his deposition.
Plaintiffs will respect that note if it turns out to be credible, although Plaintiffs have their doubts.
49. But to now claim that Plaintiffs are the ones exploiting Mr. Heller's condition is
outrageous and sanctionable. The correspondence now in the record speaks for itself.
50. But even if the Court were to view this "need for additional discovery" argument
as facially viable, the fact is that the only discovery remaining in this case is related almost
exclusively to the claim concerning the heat issue, and more particularly, HIPAA-related
concerns to the extent Landlord seeks the identities of patients affected by the stifling
temperatures in the Premises. See Exhibit "D".
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51. In relation to the parties' discovery obligations, the parties had jointly agreed to
adjourn their discovery obligations while they were discussing the possibility of settling the case.
Thus, Defendants' assertions to the contrary notwithstanding, and in particular those assertions
suggesting that Plaintiffs engaged in dilatory conduct or that they refused to provide responsive
documents, are completely disingenuous and false.
52. A more general point is appropriate here. Defendants attempt to throw obstacles
at this motion, whether through hollow claims that discovery is necessary, or that the Lease is
ambiguous, for example. But that is insufficient to defeat this motion. It is well-settled that
"hope" alone does not raise a triable issue; it is utterly insufficient to defeat summary judgment:
"Defendants cannot avoid summary judgment based on speculation that
further discovery may uncover something" (W & W Glass Sys., Inc. v
Admiral Ins. Co., 91 AD3d at 531, citing Gilbert Frank Corp. v Federal
Ins. Co., 70 NY2d 966, 967-968, 520 N.E.2d 512, 525 N.Y.S.2d 793
[1988]).
Stated another way, "[a] mere chance that somehow, somewhere, on
cross examination or otherwise plaintiffs will uncover something which
might add to their case but obviously of which now they have no
knowledge, is mere speculation and conjecture and is not sufficient"
(Trails West, Inc. v Wolff, 32 NY2d 207, 221, 298 N.E.2d 52, 344
N.Y.S.2d 863 [1973], quoting Hurley v Northwest Publs., Inc., 273 F
Supp 967, 974 [D Minn 1967], affd 398 F 2d 346 [8th Cir 1968]; see also
Barach v Farbenfabriken Bayer AG, 36 NY2d 696, 697, 325 N.E.2d 872,
366 N.Y.S.2d 412 [1975] ["Hope alone will not raise a triable issue").
New York Marine & Gen. Ins. Co. v. Illinois Union Ins. Co., No. 309507/08, 2013 N.Y.
Misc. LEXIS 6199, at *14-15 (Sup. Ct. Apr. 22, 2013). As the First Department held in
Steinberg v. Abdul: "We add that the mere hope, expressed by plaintiffs, that evidence
sufficient to establish defendants' assumption of a duty to plaintiffs' decedent may be
obtained during discovery does not fulfill their obligation to demonstrate the likelihood of
such disclosure (CPLR 3212[f])" and was therefore insufficient to defeat defendants'
motions for summary judgment"). 230 A.D.2d 633, 633 (1st Dep't 1996).
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WHEREFORE, for the reasons set forth herein and in their moving papers, Plaintiffs
respectfully request that the Court grant their motion in its entirety and award to Plaintiffs such
other and further relief as the Court deems just and proper.
Dated: New York, New York
November 10, 2014
ERIC D. SHERMAN
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Preview
FILED: NEW YORK COUNTY CLERK 11/10/2014 08:39 PM INDEX NO. 151330/2014 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/10/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DAVID L. ABRAMSON, M.D. and Index No. 151330/14 SCOT BRADLEY GLASBERG, M.D., Plaintiffs, AFFIRMATION OF ERIC D. V. SHERMAN IN FURTHER SUPPORT OF PLAINTIFFS' 74TH LLC and BEN HELLER, MOTION FOR SUMMARY JUDGMENT Defendants. ERIC D. SHERMAN, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following to be true under penalty of perjury: 1. I am a member of Pryor Cashman LLP, attorneys for plaintiffs David L. Abramson, M.D. and Scot Bradley Glasberg, M.D. ("Tenants" or Plaintiffs") in this action. As such, I have personal knowledge of and am fully familiar with, the facts and circumstances set forth herein. 2. I respectfully submit this affirmation in further support of Plaintiffs' motion for summary judgment, pursuant to CPLR 3212, for an Order: (i) granting Plaintiffs summary judgment on their first cause of action for a declaratory judgment adjudging that Plaintiffs are entitled to a declaration that (a) the Notice of Termination of Lease dated March 5, 2014 remains in full force and effect; (b) Defendants must pay Plaintiffs nine (9) times the monthly Base Rent as set forth in Article 61(C) of the Lease at issue, upon Plaintiffs' vacatur of the Premises on December 31, 2014; (c) the Withdrawal of Notice of Termination of Lease dated March 26, 2014 is null and void; (d) Plaintiffs are not in default of their obligations under the Lease; and (ii) granting Plaintiffs such other and further relief as the Court deems just and proper. PRELIMINARY STATEMENT 3. In its opposition papers, Landlord does not dispute, because it cannot dispute, the following facts: • Landlord attempted to unilaterally withdraw the Notice of Termination. See Glasberg Aff., Exhibit "K." • Neither the Lease provision at issue nor any other provision in the Lease permits Landlord to withdraw the Notice of Termination. See Glasberg Aff., Exhibit "A." • Indeed, the Lease expressly permits Landlord to withdraw other notices, but not the Notice of Termination. See Glasberg Aff., Exhibit "A." • Tenants never consented to the withdrawal of the Notice of Termination; and to be sure, Landlord and Tenant never consented to a modification of the Lease. 4. Because Landlord cannot dispute the foregoing, it invokes the typical arguments in opposition to a summary judgment motion. 5. For example, Landlord argues, incorrectly, that more discovery is needed before the Court may properly evaluate Tenants' motion. See Stewart Aff., 147-56. 6. In reality, there is absolutely no further discovery necessary to decide this motion. Establishing liability on the remaining causes of action may or may not benefit from depositions, but the cause of action for a declaratory judgment before the Court on this motion, requires absolutely no discovery at all. 7. The Offer Notice, the Notice of Termination and the Withdrawal of Notice of Termination are all this Court needs to decide the discrete legal issue before it: whether the Lease and relevant case law permit the Landlord, a commercial landlord, the right to serve a notice cancelling Tenants' leasehold interest and then turn around and unilaterally cancel that notice. 2 8. Even a cursory read of Defendants' papers reveals that they cannot point to one scintilla of information or one document that would necessitate any further discovery. Instead, Landlord simply repeats its baseless mantra that more discovery is necessary, without more. 9. On the topic of discovery, Plaintiffs take special exception to Landlord's tactic of exploiting defendant Ben Heller's health condition in order to avoid summary judgment. Plaintiffs have been asking for Landlord's deposition for months and months. Defendants repeatedly dodged, evaded and ignored those requests for a deposition. See Exhibit "A". 10. Then, after repeatedly evading or ignoring those requests, Defendants announced that Landlord had suffered a stroke. That was in August 2014. 11. Now Defendants have purported to delay indefinitely Mr. Heller's deposition by producing a doctor's note in which it is claimed that Mr. Heller is unavailable "indefinitely" for his deposition. Plaintiffs will of course respect that note if it turns out to be credible, although Plaintiffs have their serious doubts. (A true and correct copy of such letter is attached hereto as Exhibit "B"). 12. But to now claim that Plaintiffs are the ones exploiting Mr. Heller's condition is outrageous and sanctionable. The correspondence in the record speaks for itself. And it is equally disingenuous to suggest that Mr. Heller, who presumably is able to communicate, is unable to offer any views that would affect the outcome of this motion. Putting aside that there is no evidence in the record that he cannot communicate, there nothing in this fact pattern to indicate that anything he could say would have any effect on this motion. And to be sure, Heller was well aware of Plaintiffs' position articulated in this motion months before his apparent stroke. 3 13. It is flatly disingenuous for Landlord to suggest that Plaintiffs have not been forthcoming with discovery. Plaintiffs repeatedly were forced to send good faith / meet and confer letters to Defendants after they repeatedly failed to timely respond to demands. See Exhibit "C". 14. Indeed, the only paper discovery-related issue remaining in this case almost exclusively relates to the heat issue, and more particularly, HIPAA-related concerns to the extent Landlord seeks the identities of patients affected by the stifling temperatures in the Premises. A true and correct copy of the Court's Order from the July 23, 2014 Compliance Conference is attached hereto as Exhibit "D". 15. Next, Landlord also falsely alleges that Plaintiffs "successfully thwarted" (Stewart Aff., ¶2) Landlord's alleged "efforts to sell the property." First of all, this is false. But more relevant for this motion is that even if it were true, it would not matter for the purposes of this motion. 16. And in any event, Defendants' document production evidences the exact opposite to be true: the potential buyer of the Building was well aware of Tenants' Lease term and accepted as a possibility in the contract drafted by the parties that possession of the Building would occur after the end of Tenants' original Lease term at the April 2015. See Exhibit "E". 17. To repeat, despite Defendants' attempts to create factual issues where none exist, the following facts remain undisputed: The Lease provides that if Landlord desires to sell the Building during the term of the Lease, Landlord must provide Tenants with written notice of any proposed sale prior to offering the Building for sale to any third party. Glasberg Aff., Exhibit "A". - On or about November 27, 2013, Landlord delivered to Tenants the official Offer Notice that triggered Tenants' right of first refusal, pursuant to Article 61(B) of the Lease. 4 Tenants did not exercise its right to purchase the Building. On or about March 5, 2014, Landlord delivered its formal 'notice of termination' of the Lease, in accordance with Article 61(C) of the Lease, by which Landlord elected to terminate the Lease effective September 10, 2014 (that date being six (6) months following the date of the notice). Subsequent to Landlord serving Tenants with the Notice of Termination dated March 5, 2014, Tenants relied on the Notice of Termination and commenced an extensive search for alternative medical office space. On or about March 26, 2014, three weeks after servings its Notice of Termination, Landlord improperly served Tenants with the Withdrawal of Termination of Lease. A. Notwithstanding Defendants' Baseless Assertion, the Lease Does Not Allow Landlord to Unilaterally Withdraw the Notice of Termination of Lease 18. Because there is no language permitting Defendants to withdraw the Notice of Termination, they resort to the argument that nothing prohibits them from doing it. (Stewart Aft, ¶46). That argument is absurd on its face. The proper analysis is whether the express, relevant terms of the Lease permit Landlord to do so. The answer is in the negative: In the event that at any time during the term, Owner shall propose to sell the building to a third party, (subject to Tenant's right to purchase the building from the named Owner as provided in the preceding Paragraph), Owner shall have the right to terminate this Lease effective as of the date that occurs six (6) months following written notice to Tenant (the "Termination Date"). If Owner elects to terminate this Lease as aforesaid, Owner shall pay Tenant a termination payment equal to nine (9) times the monthly Base Rate payable during the Lease year in which the Termination Date shall occur. Such termination payment shall be payable by bank check or certified check on the date that Tenant shall vacate the Premises in accordance with Article 22 hereof. On the Termination Date, the Term shall expire in the manner and with the same force and effect as if it where the date set for the expiration of this Lease (...)." [Glasberg Aff, Ex. "A [emphasis added]. 19. The fact that the Lease does not "limit ... Defendants' right to withdraw" (1f46, Stewart Aff.) the Notice of Termination, does not mean that Defendants are allowed to withdraw the Notice of Termination, as evidenced by the case law cited by Plaintiffs and general contract principles that require mutual assent of both parties for any contract modification, which is really 5 what Defendants are attempting to read into the Lease. See East Port Excavation & Utilities Contractors, Inc. v. Stoneridge Homes, Inc., No. 000182-08, 2009 N.Y. Misc. LEXIS 4303, at *9 (Sup. Ct. Aug. 13, 2009). 20. The Lease was extensively negotiated between sophisticated parties and their counsel and does not include any right to withdraw notices of termination after they are served. 21. Moreover, well-settled New York law supports Plaintiffs' position, namely that a contract must be enforced according to the express terms of the agreement: "[in] cases of contract interpretation, it is well settled that when parties set down their agreement in a clear, complete document, their writing should. . . be enforced according to its terms (Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475 [2004], quoting W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162 [1990])." South Rd. Assocs., LLC v. IBM, 4 N.Y.3d 272, 277- 78 (2005) (quotation omitted). B. Further Supporting Tenants' Position Is The Doctrine Of Expressio Unius Est Exclusio Alterius 22. As Plaintiffs demonstrated in their moving papers, the Lease provides that if Tenant waives the right to purchase the Building by not delivering written notice of its election to do so, Landlord is expressly afforded the right to withdraw the Building from the market prior to serving the Notice of Termination: "... it being expressly understood that the foregoing option to purchase the Building shall be a "one-time" option and that if Tenant shall waive its rights as aforesaid, Owner shall be free to withdraw the building from the market or to sell the building on any terms Owner sees fit." [Glasberg Aff, Exhibit "A", Section 61(B)] [emphasis added]. 23. However, in the section addressing termination of the Lease, there is no language affording Landlord the right to withdraw the Notice of Termination. (Glasberg Aff, Exhibit "A", 6 Section 61(C) of the Lease). In sum, when the parties intended for Landlord to have the option of withdrawing a notice, the Lease expressly stated so. 24. Though Defendants attempt to distinguish these two provisions in their opposition papers (i.e., sections 6I(b) and 61(C)), the fact is that when the parties allowed for a unilateral withdrawal by one of the parties without the other parties consent, they specifically said so in the Lease. 25. In that regard, despite Defendants' unsupported assertions (Stewart Aff., 1 42-45), the doctrine of expressio unius est exclusio alterius dispositively supports Plaintiffs' position that the Notice of Termination may not be withdrawn. If parties omit terms that are readily found in other contractual provisions, the "inescapable conclusion is that the parties intended the omission." Quadrant Structured Prods. Co. V. Vertin, 23 N.Y.3d 549, 560 (2014). 26. Further, it bears repeating that a fundamental principle of contract law provides that contracts cannot be modified except by mutual assent of both parties. Allowing Landlord to unilaterally modify the terms of the Lease would be tantamount to permitting Landlord to unilaterally modify one of the most substantial provisions of the lease agreement: its duration. See East Port Excavation & Utilities Contractors, Inc. v. Stoneridge Homes, Inc., No. 000182-08, 2009 N.Y. Misc. LEXIS 4303, at *9 (Sup. Ct. Aug. 13, 2009). In their opposition, Defendants do not allege, because they cannot allege, that Tenants ever consented to the withdrawal of the Notice of Termination and that the parties ever consented to a modification of the Lease. C. Landlord's Earlier Act of Serving and Withdrawing a Notice of Termination Was Based on Incorrect Tax Statements and is Irrelevant to this Motion 27. Perhaps the best example of Defendants' intellectual dishonesty in their opposition papers is their assertion that Plaintiffs had previously accepted a notice of termination. 7 Here, they are actually referring to the Notice of Termination of Lease and Acceleration of Rent that Defendants served pursuant to Article 42 of the Lease. Stewart Aff., ¶ 41. Defendants' argument that since Plaintiffs had accepted the withdrawal of such notice of termination, they have somehow consented to the Withdrawal of the Notice of Termination of the Lease, is absurd on its face. Defendants' allegation that the parties "historically permitted the revocation of notices under the Lease" is false and outrageous, and unsupported by all the documentary evidence that is in the record. Stewart Aff., 1111. 28. As previously stated, the Notice to Cure and subsequent Notice of Termination of Lease and Acceleration of Rent, dated February 4, 2014, were prepared using incorrect information, as expressly admitted by Defendants' counsel in his Affidavit (Smith Aff., ¶8). To state the obvious, Tenants "accepted" Landlord's withdrawal of those incorrect notices as Tenants' counsel had in fact advised Landlords' counsel that the Notice to Cure and subsequent Notice of Termination of Lease and Acceleration of Rent. These were notices of default. They threatened termination of the Lease based on nonpayment. 29. Thus, the fact that Plaintiffs had "accepted" a "withdrawal of a prior Notice of Termination" is completely irrelevant to this motion. There has been no "history" of Tenants accepting Landlord's withdrawal of notices of termination, as Defendants falsely allege. Landlord was attempting to terminate the Lease based on a purported breach using incorrect tax statements, so clearly any withdrawal of that notice would not be rejected. Glasberg Aff, Exhibits "E" and "G"." 30. Further, the case law Plaintiffs cite in their moving papers specifically clarifies that a notice of termination "cannot be withdrawn without the consent of both parties." Plaintiffs 8 have filed this motion precisely because they have not consented to Defendants' purported withdrawal of the Notice of Termination on March 26, 2014. 1 D. Defendants Fail to Inform this Court that They Explained the Deficiencies in their Offer Notice 31. Though Defendants say that Plaintiffs initially sought a declaration that the "initial notices that the Defendants wished to sell the building, delivered in November 2013, were improper" and that Defendants in their First Amended Complaint "reverserdr their course, they purposefully omit from their papers that on March 5, 2014, Defendants clarified all the issues raised by Plaintiffs in a way that left Plaintiffs satisfied that the Offer Notice was compliant with Article 61(B) of the Lease: "According to the allegation in the Complaint, Owner was obligated to deliver its official notice before offering the Property for sale to any third party. It is not possible for a tenant to exercise a right of first refusal in connection with an offer unless and until a bona fide offer from a perspective purchaser has been made, If no offer from such a third party exists, there is nothing for a tenant with a right of first refusal to accept or refuse. Since Article 61B provides for a notice to be given to the Tenant by Owner before the Property is even offered to a third party, it is clear that the intention of Article 61B is to create for the benefit of Tenant a right to make a first offer and not a right of first refusal. The letter dated November 11, 2013, which is annexed to the Complaint as Exhibit E, is signed by Ben Heller for 74 th LLC. As required under Article 61B, the letter gives Tenant the right to make an offer to purchase the Property for a specified price, with no financing contingency, Although the letter states that 74 th LLC had just listed the Property for sale with Brown Harris Stevens, as of the date of the letter, the Property had Within this context, there is one particularly egregious misrepresentation in Defendants' opposition that I wish to call to the Court's attention. Although it has no bearing on this motion, Defendants falsely assert in the Smith Affidavit (presumably to muddy the waters) that Defendants were willing to withdraw the Notice of Termination of Lease and Acceleration of Rent (the notice alleging default), but that Plaintiffs nonetheless filed the Complaint. See Smith Aff, lj 9. That is flatly false. After I advised counsel that the notices were incorrect, counsel advised me that his clients specifically indicated that Defendants wereunwilling to withdraw the Notice to Cure and subsequent Notice of Termination of Lease and Acceleration of Rent absent some documentation bearing out the specifics of the inaccuracies we attempted to point out. With Landlord having refused to do so, and because these notices threatened Tenants' livelihood, we filed the complaint on February 13, 2014 on behalf of Tenants. On March 5, 2014, subsequent to the commencement of this action and only after Landlord was served with Tenants' Complaint, Landlord's attorney finally withdrew the Notice to Cure and Notice of Termination of Lease and Acceleration of Rent, expressly admitting that it had used incorrect information when preparing such notices ("It is true that the Tax Statements were prepared using incorrect information"). Glasberg Aff., Exhibit "H." 9 not yet been offered for sale by Brown Harris Stevens. Accordingly, the requirements of Article 61B have been satisfied by the Owner. Tenant did not exercise its option to make a first offer to purchase the Property within thirty days after the date of the letter. In fact, as recently as two weeks ago, you informed me that Tenant has no interest in purchasing the Property." [Glasberg Aff, Exhibit "H"][emphasis added]. 32. This explanation proffered by Defendants makes it clear that they had considered and evaluated Tenants' objections, that they had rejected those arguments and that they were exercising their right to terminate the Lease prematurely through service of the Notice of Termination. Landlord chose this path. Landlord cannot now be heard to complaint that any action or inaction on the part of Tenants somehow caused a sale to go through. If Landlord believed that was the case, Landlord easily could have refrained from serving the Notice of Termination, but it did not do so. E. Defendants Fail to Offer a Single Case to Refute the Proposition that Once A Valid Notice To Terminate Is Exercised, The Party To Whom It Was Given May Rely Upon It 33. As Plaintiffs demonstrated in their moving papers, pursuant to applicable case law, when a valid notice to terminate is given by a party, the party to whom it is given may rely upon it, and it may not be withdrawn without the consent of both parties. Shapiro v. Childs, 222 Mo. App. 1126, 1132 (1929) (citations omitted); Housing Auth. of Portland v. Martini, 141 Ore. App. 1 (1996); Livbros L.L.C. v. Vandenburgh, 179 Misc. 2d 736 (Civ. Ct. Kings Cty. 1999) (holding that since tenant's election to terminate the tenancy was explicit, such party could not simply retract its voluntary termination; Devonshire v. Langstaf, 10 Cal. App. 2d 369, 374 (1935) (quoting Western Union Tel. Co. v. Pennsylvania R. Co., 120 F. 362 (C.C.D. Pa. 1903) (quotations omitted) (holding that "[w]hen a valid notice to quit is given by the landlord or tenant the party to whom it is given is entitled to count upon it, and it cannot be withdrawn without the 10 consent of both parties. If such consent is given, there is a new agreement between the parties and a new tenancy is created, which exists only under that new agreement"). 34. Defendants do not refer to any analogous cases to challenge this proposition. 35. The sole case cited by Defendants, which they evidently cite for the proposition that notices of termination "generally may be withdrawn even after an action has been filed," is completely misconstrued. Stewart Aff., If 39. In that case, captioned Eve & Mike Pharmacy, Inc. v. Greenwich Pooh, LLC, the court merely states that landlord "withdrew" the notice of termination. But the court does not analyze whether the withdrawal of the notice was proper and/or whether the other party consented to that withdrawal. 107 A.D.3d 505, 505 (1st Dep't 2013). 36. Thus, reliance on that case entirely misplaced. F. Although Irrelevant to this Motion, Tenants Have Satisfactorily Demonstrated Reliance on the Notice of Termination 37. Defendants do not cite to any authority for the proposition that the notice may be revoked absent detrimental reliance. This again suggests that there is no case law to support Defendants' assertions. The Termination Notice is irrevocable absent consent of both parties, irrespective of whether Tenants detrimentally relied upon the notice. 38. To be sure, once Tenants were served with the Notice of Termination, they reasonably relied on Landlord's Notice of Termination. Tenants commenced a search for an alternative office space, and engaged Wexler Healthcare Properties as their broker, which they have continued up to this date. See Glasberg Aff. , Exhibit "J." 39. But in all events, the issue of whether Tenants reasonably relied on the Notice of Termination is irrelevant. Nothing asserted by Defendants in their opposition papers changes the 11 fact that Defendants chose to terminate the Lease and that the Lease will irrevocably terminate on December 31, 2014 based on Defendants' voluntary election and the course they charted. Having chosen that path, they now must abide by their choice. 40. Finally, Defendants improperly cite to case law involving ambiguous lease provisions in order to create an issue of fact with respect to whether the Lease permits withdrawal of the notice. But here, the Lease is clear and unambiguous. (136-7, Stewart Aff.) The Court therefore should reject that attempt to suggest ambiguity: "[p]arties to a contract may not create an ambiguity merely by urging conflicting interpretations of their agreement." Mount Vernon City School Dist. v. Nova Cas. Co., 30 Misc. 3d 1233(A), 2009 N.Y. Misc. LEXIS 6599, at ***32 (Sup. Ct. 2009), aff'd, 78 A.D.3d 1028 (2d Dept 2010), gild, 19 N.Y.3d 28 (2012) (citation & quotations omitted). 41. Similarly, courts have repeatedly held that the contract must be read as a whole, even where one particular provision is arguably ambiguous: Although the parties dispute the meaning of specific contract clauses, our task is to determine whether such clauses are ambiguous when "read in the context of the entire agreement." By examining the entire contract, we safeguard against adopting an interpretation that would render any individual provision superfluous. Parties to a contract may not create an ambiguity merely by urging conflicting interpretations of their agreement. Sayers v. Rochester Tel. Corp. Supplemental Mgmt. Pension Plan,7 F.3d 1091, 1095 (2d Cir. 1993) (internal citations omitted). G. There are no Outstanding Discovery Issues Relevant to this Motion 42. Contrary to Defendants baseless assertions, there are no discovery disputes even remotely relevant to this motion. 43. For Defendants to successfully oppose summary judgment on the grounds of insufficient discovery, they have to "'produce some evidence indicating that further discovery 12 will yield material and relevant evidence' Heritage Hills Soc'y, Ltd. v. Heritage Development Group, Inc., 56 A.D.3d 426, 427 (2d Dep't 2008), quoting Fleischman v. Peacock Water Co., 51 A.D.3d 1203, 1205 (3d Dep't 2008); See also Hayden v. City of New York, 26 A.D.3d 262 (1st Dep't 2006) ("[P]laintiff failed to show that the representatives already deposed had insufficient knowledge or were otherwise inadequate, or that further discovery was warranted by reason of a substantial likelihood that additional persons sought for deposition possessed information material and necessary to oppose the motion") (citations omitted); Korie v. 27 W. 71st St., LLC, No. 102567/08, 2009 N.Y. Misc. LEXIS 5055, at *32-34 (Sup. Ct. Nov. 9, 2009) (Court granted summary judgment holding that plaintiff provided no evidence indicating that further discovery will yield material and relevant evidence). 44. Here, Defendants have failed to produce any, evidence indicating which information any further discovery will yield that is even remotely relevant to this motion. 45. As to Defendants' assertion that Plaintiffs withheld documents based on an assertion of privilege, is refuted by the documents themselves as the documents redacted by Plaintiffs have absolutely nothing to do with this motion. In fact, the only documents that were redacted by Tenants consisted of email communications among Tenants and their counsel, attaching the checks that referred to payments of rent. Tenants produced all the documents attached to those privileged communications. (A true and correct copy of the documents redacted and produced by Plaintiffs are attached hereto as Exhibit "F"). 46. For that reason, Defendants' assertion that certain documents were redacted by Tenants without a privilege log (Stewart Aff., ¶51) also fails, Indeed, Defendants complain that Tenants have not yet produced a privilege log while they have failed to do so. 13 47. Further, it is not clear how documents relating to the claim that "Plaintiffs operate one of the tri-state's most successful plastic surgery practices" and "that the alleged temperature issue harmed their practice or drove patients away" could be even remotely relevant to Plaintiffs' present motion. (Stewart Aff., '753). Also totally irrelevant is the question of whether Tenants had the financial wherewithal to acquire the Building. (Stewart Aff. , ¶53). That is an utter red herring and perfectly irrelevant not only to this motion, but to this action entirely. Tenants never exercised the option. H. Mr. Heller's Physical Condition Not Only is Irrelevant to this Motion. It is Totally Improper for Defendants Even to Raise It 48. As to Mr. Heller and his apparent condition, Plaintiffs sought to depose Mr. Heller for months and months. Defendants repeatedly dodged, evaded and ignored those requests for a deposition. A true and correct copy of the communications are attached hereto as Exhibit "A." Then, after repeatedly evading or ignoring those requests, Defendants announced that Landlord had suffered a stroke and that Landlord was unable to be deposed. Now Defendants have purported to delay indefinitely Mr. Heller's deposition by producing a doctor's note that purports to claim that Mr. Heller is unavailable "indefinitely" for his deposition. Plaintiffs will respect that note if it turns out to be credible, although Plaintiffs have their doubts. 49. But to now claim that Plaintiffs are the ones exploiting Mr. Heller's condition is outrageous and sanctionable. The correspondence now in the record speaks for itself. 50. But even if the Court were to view this "need for additional discovery" argument as facially viable, the fact is that the only discovery remaining in this case is related almost exclusively to the claim concerning the heat issue, and more particularly, HIPAA-related concerns to the extent Landlord seeks the identities of patients affected by the stifling temperatures in the Premises. See Exhibit "D". 14 51. In relation to the parties' discovery obligations, the parties had jointly agreed to adjourn their discovery obligations while they were discussing the possibility of settling the case. Thus, Defendants' assertions to the contrary notwithstanding, and in particular those assertions suggesting that Plaintiffs engaged in dilatory conduct or that they refused to provide responsive documents, are completely disingenuous and false. 52. A more general point is appropriate here. Defendants attempt to throw obstacles at this motion, whether through hollow claims that discovery is necessary, or that the Lease is ambiguous, for example. But that is insufficient to defeat this motion. It is well-settled that "hope" alone does not raise a triable issue; it is utterly insufficient to defeat summary judgment: "Defendants cannot avoid summary judgment based on speculation that further discovery may uncover something" (W & W Glass Sys., Inc. v Admiral Ins. Co., 91 AD3d at 531, citing Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967-968, 520 N.E.2d 512, 525 N.Y.S.2d 793 [1988]). Stated another way, "[a] mere chance that somehow, somewhere, on cross examination or otherwise plaintiffs will uncover something which might add to their case but obviously of which now they have no knowledge, is mere speculation and conjecture and is not sufficient" (Trails West, Inc. v Wolff, 32 NY2d 207, 221, 298 N.E.2d 52, 344 N.Y.S.2d 863 [1973], quoting Hurley v Northwest Publs., Inc., 273 F Supp 967, 974 [D Minn 1967], affd 398 F 2d 346 [8th Cir 1968]; see also Barach v Farbenfabriken Bayer AG, 36 NY2d 696, 697, 325 N.E.2d 872, 366 N.Y.S.2d 412 [1975] ["Hope alone will not raise a triable issue"). New York Marine & Gen. Ins. Co. v. Illinois Union Ins. Co., No. 309507/08, 2013 N.Y. Misc. LEXIS 6199, at *14-15 (Sup. Ct. Apr. 22, 2013). As the First Department held in Steinberg v. Abdul: "We add that the mere hope, expressed by plaintiffs, that evidence sufficient to establish defendants' assumption of a duty to plaintiffs' decedent may be obtained during discovery does not fulfill their obligation to demonstrate the likelihood of such disclosure (CPLR 3212[f])" and was therefore insufficient to defeat defendants' motions for summary judgment"). 230 A.D.2d 633, 633 (1st Dep't 1996). 15 WHEREFORE, for the reasons set forth herein and in their moving papers, Plaintiffs respectfully request that the Court grant their motion in its entirety and award to Plaintiffs such other and further relief as the Court deems just and proper. Dated: New York, New York November 10, 2014 ERIC D. SHERMAN 16