Carmel Partners, Inc. v. Greenpoint-Goldman SM LLC

Carmel Partners, Inc. v Greenpoint-Goldman SM LLC 2026 NY Slip Op 30709(U) February 25, 2026 Supreme Court, New York County Docket Number: Index No. 650272/2024 Judge: Phaedra F. Perry-Bond 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.6502722024.NEW_YORK.001.LBLX036_TO.html[03/10/2026 3:45:53 PM]

FILED: NEW YORK COUNTY CLERK 02/25/2026 02:46 PM INDEX NO. 650272/2024 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/25/2026

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. PHAEDRA F. PERRY-BOND PART 35 Justice -------------------X INDEX NO. 650272/2024 CARMEL PARTNERS, INC., and CP Ill AJ 63RD, LLC MOTION DATE 03/24/2025 Plaintiffs, MOTION SEQ. NO. 001 -v- GREENPOINT-GOLDMAN SM LLC, DECISION + ORDER ON MOTION Defendant.

-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29,30,31, 32,33,34,35,36,37, 38,39,40,41,42,43,44,45, 46,47,48,49 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, Plaintiffs Carmel Partners, Inc.'s ("Carmel Partners") and

CP III AJ 63 rd , LLC ("CP III") (collectively "Plaintiffs") motion for summary judgment against

Defendant Greenpoint-Goldman SM LLC ("Greenpoint") on its breach of contract claim I and

seeking summary judgment dismissing Greenpoint's counterclaim is granted in part and otherwise

denied, without prejudice and with leave to renew upon further discovery.

I. Background

Greenpoint owns a 14-story residential rental building at 225 E. 63 rd Street, New York,

New York (the "Premises"). CP III was allegedly a successor tenant and Greenpoint was allegedly

a successor landlord to a lease executed on 1964 between non-parties Newport Associates Inc. and

P.E.P. 63 rd Street, Inc. (the "Lease") (NYSCEF Doc. 35).² CP III leased the Premises from

November 22, 2011 through November 26, 2024. On October 26, 2021, a fire occurred at the

FILED: NEW YORK COUNTY CLERK 02/25/2026 02:46 PM INDEX NO. 650272/2024 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/25/2026

FILED: NEW YORK COUNTY CLERK 02/25/2026 02:46 PM INDEX NO. 650272/2024 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/25/2026

form, sufficient to establish the existence of material issues of fact which require a trial (See e.g.,

Zuckerman v City ofNew York, 49 NY2d 557,562 [1980]).

Here, Plaintiffs failed to establish their primafacie case through admissible evidence which

requires denying the motion regardless of the insufficiency of the opposing papers (see Lopez v

Trahan, 234 AD3d 552, 554 [1st Dept 2025] citing Jacobsen v New York City Health & Hasps.

Corp., 22 NY3d 823,833 [2014]). As a preliminary matter, the motion completely fails to address

the relationship between Carmel Partners and CP III and how Greenpoint can be liable to Cann.el

Partners for breach of a lease to which Cann.el Partners is not privy to (see, e.g. Markov v Katt,

176 AD3d 401, 401-402 [I st Dept 2019] [breach of contract requires the existence of a contract

between parties]).

Moreover, the motion in chief contains no proof of the business loss expenses incurred and

therefore CP III has failed to establish prima facie, through admissible evidence, a breach of

contract or damages. The evidence submitted on reply cannot be considered as Plaintiffs may not

remedy evidentiary deficiencies in their motion on reply (see Ruland v 130 FG, LLC, 181 AD3d

441 [1st Dept 2020]). The motion also relies on affirmations from Zachary Rosenthal and Jennifer

Will, whom Greenpoint has not had an opportunity to depose, making the motion premature (see,

e.g. 470 40th Avenue Fee Owner, LLC v Wesco Ins. Co., 243 AD3d 461, 461-462 [1st Dept 2025];

seealso241 Fifth Ave. Hotel, LLCvGSYCorp., 110AD3d470,472 [lstDept2013]).

Issues of fact are further compounded because, pursuant to the Lease, the only insurance

proceeds which CP III was required to deposit with Defendant were those proceeds meant to repair

the building, so if Plaintiff was provided insurance proceeds for business interruption it should not

have been given to Defendant in the first place. Discovery is needed to explain the process through

which CP III became aware that some of the money deposited with Defendant was in actuality for

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FILED: NEW YORK COUNTY CLERK 02/25/2026 02:46 PM INDEX NO. 650272/2024 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/25/2026

business interruption costs and not for building damage and repair. This is especially the case since

the parties agreed that any proceeds held by Defendant which "exceed the costs of repairing or

rebuilding the building to substantially the same design and construction which existed prior to the

damage, the excess, if any, after the payment of the said costs, shall belong to Landlord."

However, the motion for summary judgment dismissing the counterclaim for attorneys'

fees is granted. The attorneys' fees provision in the Lease is found at Article 6 and provides that

"The Tenant shall indemnify, defend and save harmless the Landlord from any and all liabilities,

damages, penalties, costs, expenses, claims, suits or actions due to or arising out of (a) any breach,

violation or non-performance of any covenant, condition or agreement in this Lease contained on

the part of the Tenant to be fulfilled, kept, observed, and performed ... ". Greenpoint claims it is

entitled to attorneys' fees because CP III is breaching Article 9 of the Lease by demanding money

to which it is not entitled. But there is nothing in the lease whereby CP III promised not to sue

Greenpoint based on alleged improper withholding of insurance proceeds pursuant to Article 9.

Because this is not a suit "arising out of any breach of a covenant, condition or agreement on the

part of [CP III] to be fulfilled, kept, observed, and performed ... " the attorneys' fees provision does

not apply and the counterclaim must be dismissed (see, e.g. Hooper Associates, Ltd. v AGS

Computers, Inc., 74 NY2d 487, 491-492 [1987]; Needham & Company, LLC v UPHealth

Holdings, Inc., 212 AD3d 561, 561-562 [1st Dept 2023]; Gotham Partners, L.P. v High River Ltd.

Partnership, 76 AD3d 203 [1st Dept 2010]).

Accordingly, it is hereby,

ORDERED that the motion for summary judgment is granted solely to the extent that

Greenpoint's counterclaim for attorneys' fees is dismissed, and the remainder of the motion for

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FILED: NEW YORK COUNTY CLERK 02/25/2026 02:46 PM INDEX NO. 650272/2024 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/25/2026

summary judgment is denied, without prejudice, and with leave to renew upon further discovery;

and it is further

ORDERED that the parties shall meet and confer immediately and submit a proposed

preliminary conference order to the Court via e-mail, but in no event shall the proposed order be

submitted any later than March 24, 2026. 3 If the parties have a serious discovery dispute, requiring

Court intervention, then the parties shall advise the Court via e-mail at which time an in-person

conference may be scheduled; and it is further

ORDERED that within ten days of entry, counsel for Plaintiffs shall serve a copy of this

Decision and Order, with notice of entry on all parties via NYSCEF.

This constitutes the Decision and Order of the Cou

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

Footnotes

[1] The notice of motion does not specify under what cause(s) of action Plaintiffs seek summary judgment, but the memorandum of law only argues in support of summary judgment on the breach of contract claim.

[2] There is no lease assignment or lease renewal offered by either party, but neither party disputes that this lease is in effect. 650272/2024 CARMEL PARTNERS, INC. ET AL vs. GREENPOINT-GOLDMAN SM LLC Page 1 of 5 Motion No. 001 [* 1] 1 of 5 Premises and damaged the building. Article 9, Section 1 of the parties' Lease states "The proceeds of all insurance against damage to or destruction of the demised premises shall be paid to the Landlord upon occurrence of any loss." In accordance with this Lease provision, CP III delivered a check from its insurer in the amount of $2,000,000 to Greenpoint. The parties agreed in Article 9, Section 3 of the Lease that if the insurance proceeds "exceed the costs of repairing or rebuilding the building to substantially the same design and construction which existed prior to the damage, the excess, if any, after the payment of the said costs, shall belong to Landlord." On December 14, 2022, Greenpoint disbursed $834,105.55 of the $2,000,000 in insurance proceeds to CP III for repairs to the Premises in accordance with Article 9, Section 3 of the Lease. On August 9, 2023, a further $784,001.13 of the $2,000,000 in insurance proceeds was disbursed to CP III. On August 24, 2023, Plaintiffs sought the remainder of the $384,371.89 in insurance proceeds being held by Defendant to cover Plaintiffs' business interruption losses, but Defendant allegedly refused, leading to this lawsuit. Prior to the preliminary conference being held, Plaintiffs moved for summary judgment. Defendant opposes. II. Discussion The motion for summary judgment with respect to Plaintiffs' breach of contract claim is denied, without prejudice, and with leave to renew upon further discovery. "Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." (Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824,833 [2014]). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible 650272/2024 CARMEL PARTNERS, INC. ET AL vs. GREENPOINT-GOLDMAN SM LLC Page 2of5 Motion No. 001 [* 2] 2 of 5

[3] This date is for the submission of a proposed preliminary conference order only - it is not to appear in- person for a conference. 650272/2024 CARMEL PARTNERS, INC. ET AL vs. GREENPOINT-GOLDMAN SM LLC Page 5 of 5 Motion No. 001 [* 5] 5 of 5