GCP Capital Group LLC v. Monday Properties Investments, LLC

[555] Plaintiff failed to sustain its burden of showing that the condition precedent in the parties’ letter agreement was prevented or rendered impossible by defendants in order to avoid liability to plaintiff (see Creighton v Milbauer, 191 AD2d 162, 165 [1993]; cf. North40RE Realty v Bishop, 2 AD3d 1184 [2003]). On the contrary, the record presented no issue of fact as to whether defendants acted in bad faith to frustrate the parties’ agreement. Further, the record presents no issue of fact as to whether defendants frustrated plaintiffs efforts to consummate a transaction. Rather, the record shows that any deal between plaintiff and the party ultimately providing preferred equity financing came about as a result of a third party’s efforts in obtaining financing for the transaction at issue, and that plaintiff had no role in that transaction. Moreover the deal that was ultimately struck concerning the ownership of 230 Park Avenue differed substantially from the one that formed the basis of the letter agreement between the parties. Consequently, the IAS court properly granted summary judgment to defendants. Plaintiffs remaining contentions are either unpreserved or unavailing. Concur — Andrias, J.E, Saxe, Freedman and Richter, JJ. [Prior Case History: 30 Misc 3d 1234(A), 2010 NY Slip Op 52387(U).]