LLC v. New York City Economic Development Corporation, et al., Defendants-Respondents. (2011)

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Order, Supreme Court, New York County (Karen S. Smith, J.), entered June 10, 2009, which granted defendants' motion for summary judgment dismissing the complaint and declaring in their favor on their counterclaims, unanimously modified, on the law, to deny the part of the motion that seeks to dismiss the first cause of action and to declare in defendants' favor on that cause of action, and otherwise affirmed, without costs.   Appeal from order, same court and Justice, entered October 28, 2009, which, upon reargument of defendants' motion, adhered to the original determination, unanimously dismissed, without costs, as academic.

In opposition to defendants' motion, plaintiffs failed to show that “facts essential to justify opposition may [have] exist[ed] but [could not] then be stated” so as to warrant the additional disclosure they sought (CPLR 3212 [f] ).  In light of the existing record, it is clear that further discovery would reveal no evidence that would raise an issue of fact as to the validity of the conditions subsequent in the Harlem property contract and deed.

Further, the record presents no issue of fact whether plaintiffs' subsequent lease in the Bronx obviated their obligations with respect to the Harlem property.   Indeed, the parties entered into a modification of the original deed to the Harlem property that reaffirmed the original conditions subsequent.

We have considered plaintiffs' remaining contentions and find them without merit.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK