CB LLC v. II (2017)

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Order, Supreme Court, New York County (Eileen Bransten, J.), entered February 7, 2017, which, in a declaratory judgment action, denied defendant's motion to dismiss the amended complaint, unanimously affirmed, with costs.

The motion court correctly found that defendant failed to conclusively establish a defense as a matter of law based on the mortgage that defendant held on plaintiff's properties and the accompanying UCC–1 statement.  Plaintiff advanced a reasonable interpretation of the collateral provision in the mortgage and the nearly identical provision in the UCC–1 statement in maintaining that the portion of the FAR bonus awarded to it by the City of New York that had not yet been transferred or applied to plaintiff's properties could be transferred to another developer and was not subject to defendant's existing mortgage lien.  This was because, although the mortgage included “all” of defendant's rights “in any manner whatsoever” and “in any way,” these inclusive terms were modified by the arguable limitation that they be “belonging, relating to or pertaining to the land.”  That the FAR bonus could be transferred to another developer supports plaintiff's argument that it was not an inherent element of ownership of the land and therefore was not collateral under the mortgage.

We have considered defendant's other contentions and find them unavailing.

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CLERK