GCP CAPITAL GROUP LLC v. MONDAY PROPERTIES INVESTMENTS LLC (2012)

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered December 9, 2010, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment, unanimously affirmed, with costs.

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 A.D.2d 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 plaintiff's 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.

Plaintiff's remaining contentions are either unpreserved or unavailing.