Grand Pacific Finance Corp. v. 97-111 Hale, LLCGrand Pacific Finance Corp. v. 97-111 Hale, LLC
Ordered that the order is reversed on the appeal by the plaintiff/counterclaim defendant, on the law, the motion of the defendants/counterclaim plaintiffs/cross claim plaintiffs for leave to serve and file a late demand for a jury trial is denied, and the cross motion of the plaintiff/counterclaim defendant to strike the demand for a jury trial is grаnted; and it is further,
Ordered that one bill of costs is awarded to the plaintiff/counterclaim defendant payable by the defendants/counterclaim plaintiffs/cross claim plaintiffs, 97-111 Hale, LLC, 100-114 Hale, LLC, and Joe Bobker.
The defendants/cоunterclaim plaintiffs/cross claim plaintiffs waived their right to a jury trial by including counterclaims and cross claims for equitable relief along with their counterclaims and cross claims for legal relief that were based on the same transactions (see Haber v Cohen, 74 AD3d 1282, 1282 [2010]; Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 481, 482 [2009]; Nationscredit Fin. Servs. Corp. v Turcios, 55 AD3d 806 [2008]). Accordingly, the Supreme Court should have denied their motion for leave to serve and file a late demand for a jury trial, and granted the cross motion of the plaintiff/counterclaim defendant to strike the demand.
In light of the foregoing, we need not address the parties’ remaining contentions. Rivera, J.P., Skelos, Dickerson and Barros, JJ., concur.
Ordered that the order is modified, on the law, (1) by dеleting the provisions thereof denying those branches of the plaintiff/counterclaim defendant‘s motion which were for summary judgment striking the fourth, seventh, eighth, and ninth affirmative defenses set forth in the amended answer of the defendants/countеrclaim plaintiffs/cross claim plaintiffs, 97-111 Hale, LLC, 100-114 Hale, LLC, and Joe Bobker, and dismissing the first and second counterclaims of the defendants/counterclaim plaintiffs/cross claim plaintiffs and the additional counterclaim plaintiffs/additional cross claim plaintiffs Eli Bobker, Ben Bobker, and Hale Club, LLC, and substituting therefor provisions granting those branches of the motion, (2) by deleting the provision thereof denying that branch of the motion of the additional cross claim defendant United Asian Funds, LLC, which was for summary judgment dismissing the first cross claim of
The Supreme Court properly denied that branch of the mоtion of the plaintiff/counterclaim defendant, Grand Pacific Finance Corp. (hereinafter Grand Pacific), which was for summary judgment on the complaint to foreclose a mortgage. Grand Pacific met its initial burden of establishing its рrima facie entitlement to a judgment of foreclosure by producing the mortgage, the note, and evidence of default (see Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895, 895 [2013]; Solomon v Burden, 104 AD3d 839, 839 [2013]; Aurora Loan Servs., LLC v Thomas, 53 AD3d 561, 561 [2008]). In opposition, however, the defendants/counterclaim plaintiffs/cross claim plaintiffs, 97-111 Hаle, LLC, 100-114 Hale, LLC, and Joe Bobker (hereinafter collectively the Hale defendants), and the additional counterclaim plaintiffs/additional cross claim plaintiffs, Eli Bobker, Ben Bobker, and Hale Club, LLC (hereinafter collectively with the Hale defendants, the Bobker respondents), raised a triable issue of fact as to whether Grand Pacific acted in bad faith and engaged in oppressive and unconscionable conduct in, among other things, allegedly prеventing the Bobker respondents from paying off the loan secured by the subject mortgage unless they also paid off certain loans made by the additional cross claim defendants Global One Corp. (hereinafter Global One) and 366 Madison, Inc. (hereinafter 366 Madison), and by interfering with the Bobker respondents’ attempts to obtain funds from, or sell the subject properties to, other investors (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 183 [1982];
The Supreme Court should have granted that branch of the motion of Grаnd Pacific which was for summary judgment dismissing the Bobker respondents’ second counterclaim, which alleged breach of a fiduciary duty arising from a joint venture or partnership, and those branches of the separate motions of thе additional cross claim defendant Belton Lee and the additional cross claim defendants Global One, 366 Madison, and Michael Lin which were for summary judgment dismissing, insofar as asserted against each of them, the Bobker respondents’ sеcond cross claim, which also alleged breach of a fiduciary duty arising from a joint venture or partnership. Similarly, that branch of Grand Pacific‘s motion which was for summary judgment striking so much of the Hale defendants’ eighth affirmative defense as alleged breach of fiduciary duty should have been granted. “Generally, where parties have entered into a contract, courts look to that agreement ‘to discover . . . the nexus of [the parties‘] relationship and the particular contractual expression establishing the parties’ interdependency.’ ‘If the parties . . . do not create their own relationship of higher trust, courts should not ordinarily transport them to the higher realm of relаtionship and fashion the stricter duty for them‘” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19-20 [2005] [citation omitted], quoting Northeast Gen. Corp. v Wellington Adv., 82 NY2d 158, 160, 162 [1993]; see Oddo Asset Mgt. v Barclays Bank PLC, 19 NY3d 584, 593 [2012]; First Keystone Consultants, Inc. v DDR Constr. Servs., 74 AD3d 1135, 1136 [2010]). Here, the written operating agreements submitted in support of the motions demonstrated an intent to form a limited liability company, not a partnership or joint venture that would have given rise tо a fiduciary relationship. Moreover, the members of the limited liability company did not share control of the subject development project or responsibility for the losses, which are elements of both a joint venture аnd a partnership (see Matter of Steinbeck v Gerosa, 4 NY2d 302, 317 [1958]; Massey v Byrne, 112 AD3d 532, 533 [2013]; Kaufman v Torkan, 51 AD3d 977, 979 [2008]; Rocchio v Biondi, 40 AD3d 615, 616-617 [2007]; Accent Assoc. v Wheatley Constr. Corp., 268 AD2d 494 [2000]). In opposition to the movants’ prima facie showing, the Bobker respondents, who relied on the same operating agreements, failed to raise a triable issue of fact.
Further, Grand Pacific, Glоbal One, 366 Madison, Lin, Lee, and the additional cross claim defendant United Asian Funds,
The Supreme Court also should have granted those branches of Grand Pacific‘s motion which were for summary judgment striking the Hale defendants’ fourth and seventh affirmative defenses, and so much of the eighth affirmative defense as alleged breach of contract. In opposition to Grand Pacific‘s prima facie showing of entitlеment to judgment as a matter of law striking those affirmative defenses, the Hale defendants did not substantiate those conclusory affirmative defenses with factual allegations (see
The parties’ remaining contentions either need not be reached in light of our determination, or are without merit. Rivera, J.P., Skelos, Dickerson and Barros, JJ., concur.