Jacobson Dev. Grp., LLC v. Grossman

• Decision Date: 27 October 2021
• Docket Number: 2020-07369,Index No. 603297/20
• Citation: 198 A.D.3d 956,156 N.Y.S.3d 363
• Parties: JACOBSON DEVELOPMENT GROUP, LLC, respondent, v. Gary GROSSMAN, etc., et al., defendants, JAZ Grand, LLC, et al., appellants.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 956
156 N.Y.S.3d 363

JACOBSON DEVELOPMENT GROUP, LLC, respondent,
v.
Gary GROSSMAN, etc., et al., defendants,

JAZ Grand, LLC, et al., appellants.

2020-07369
Index No. 603297/20

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 17, 2021
October 27, 2021

156 N.Y.S.3d 364

Weiss Zarett Brofman Sonnenklar & Levy, P.C., New Hyde Park, N.Y. (Michael J. Spithogiannis of counsel), for appellants.

Rosenberg Fortuna & Laitman, LLP, Garden City, N.Y. (David I. Rosenberg and Joseph P. Sacco of counsel), for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

198 A.D.3d 956

In an action, inter alia, to recover damages for breach of contract, the defendants JAZ Grand, LLC, and Wilbur Breslin appeal from an order of the Supreme Court, Nassau County (Timothy S. Driscoll, J.), entered September 4, 2020. The order, insofar as appealed from, denied that branch of those defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the defendant JAZ Grand, LLC, denied that branch of those defendants’ motion

156 N.Y.S.3d 365

which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the defendant Wilbur Breslin with prejudice, and granted the plaintiff's application for leave to amend the complaint.

ORDERED that the appeal from so much of the order as granted the plaintiff's application for leave to amend the complaint is dismissed, without costs or disbursements, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a] ), and leave to appeal has not been granted; and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants JAZ Grand, LLC, and Wilbur Breslin which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as

198 A.D.3d 957

asserted against the defendant JAZ Grand, LLC, with prejudice, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.

In June 2017, the plaintiff commenced an action (hereinafter the prior action) against, among others, Yews, Inc. (hereinafter Yews), Gary Grossman, and Sandra Kessler, inter alia, to foreclose a mortgage encumbering certain real property located in Nassau County (hereinafter the premises). In the prior action, the plaintiff alleged that on February 2, 2006, the plaintiff and Yews entered into a joint venture agreement with nonparty Taj Holdings, LLC (hereinafter Taj), for the development of the premises, and that in connection with the joint venture agreement, on May 12, 2006, Yews conveyed a mortgage on the premises in favor of the plaintiff. The plaintiff alleged that Yews defaulted under the mortgage and that Yews misrepresented that it owned one of the lots comprising the premises. Yews, Grossman, and Kessler moved, inter alia, to dismiss the complaint insofar as asserted against them as time-barred, and submitted a copy of the mortgage dated May 12, 2006, which provided that the sum of $350,000 was to be paid 60 days from the date of execution. In an order entered February 14, 2018 (hereinafter the February 2018 order), the Supreme Court denied the motion, citing purportedly fraudulent circumstances surrounding the identity of Grossman. Yews, Grossman, and Kessler appealed from the February 2018 order.

In March 2018, the parties in the prior action stipulated that JAZ Grand, LLC (hereinafter JAZ), which purported to have acquired title to the premises, could intervene as a defendant in the prior action, and JAZ interposed an answer asserting a counterclaim to quiet title to the premises.

By decision and order dated July 31, 2019, this Court reversed the February 2018 order, determining that Yews, Grossman, and Kessler established, prima facie, that the six-year statute of limitations had expired prior to the commencement of the prior action, and the plaintiff failed to raise a question of fact as to whether any purported fraudulent activity affirmatively induced it to refrain from commencing the prior action until the statute of limitations had expired (see Jacobson Dev. Group, LLC v. Yews, Inc., 174 A.D.3d 868, 869–870, 106 N.Y.S.3d 119 ).

In March 2020, the plaintiff commenced this action against Grossman, Yews, JAZ, Wilbur Breslin, and another defendant. The complaint alleged that on February 2, 2006, Taj entered into a joint venture agreement with Yews to redevelop the premises, Taj designated the plaintiff to act on its behalf with

198 A.D.3d 958

respect to the joint venture agreement, and Yews conveyed the premises to JAZ in contravention of the joint venture agreement. The complaint

156 N.Y.S.3d 366

asserted, inter alia, a cause of action against Grossman and Yews alleging breach of the joint venture agreement, and causes of action against JAZ and Breslin alleging tortious interference with contract and tortious interference with business relations.

Thereafter, JAZ and Breslin moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. JAZ and Breslin contended, inter alia, that this action was barred by res judicata, the statute of limitations, and documentary...