WILD WEST VENTURES LLC v. 703 WASHINGTON CORP

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

WILD WEST VENTURES, LLC, Plaintiff–Appellant, v. 703 WASHINGTON CORP. et al., Defendants–Respondents.

Decided: May 29, 2012

FRIEDMAN, J.P., SWEENY, RENWICK, FREEDMAN, ABDUS–SALAAM, JJ. Schiff Hardin LLP, New York (Mathew B. West of counsel), for appellant. Zane and Rudofsky, New York (Eric S. Horowitz of counsel), for respondents.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered September 13, 2011, which denied plaintiff's motion for summary judgment on its breach of contract claim and for dismissal of defendants' counterclaim;  granted defendants' motion for summary judgment dismissing plaintiff's complaint;  granted defendants' motion for summary judgment on their counterclaim;  directed that the escrowed funds in the amount of $2,500,000 be released and delivered to defendants;  and ordered that plaintiff pay defendants' legal fees and disbursements in the amount of $65,761. 51, unanimously affirmed, without costs.

The motion court correctly determined that defendants' failure to disclose a pending slip and fall action prior to the scheduled closing date was neither a material breach of their obligation to disclose actions or proceedings which would affect the purchaser or property prior to closing, nor was the potential of the action to affect the premises an issue of material fact that precluded summary judgment.

The slip and fall action was well within the liability insurance limits, the insurer was indemnifying and defending the action, and the alleged defect that gave rise to the suit had been repaired.   While the suit arguably caused the property's liability insurance premium to increase, it increased by only $582, a de minimis amount, particularly when considered in light of the $34,000,000 purchase price of the property.

We have considered plaintiff's remaining arguments and find them unavailing.