FKB obtains dismissal of a commercial real estate action on a motion for summary judgment from Justice Jeffrey K. Oing, New York State Supreme Court, New York County Commercial Division.
The plaintiff real estate investment company sought damages from their co-owners/project developers for alleged breaches of contract and fiduciary duty in connection with a failed 2006 upper Manhattan real estate project and asserted a loss of $8.3M in anticipated profits.
In a previous related litigation, FKB also represented an attorney sued by the same plaintiff for his alleged “negligent advice” which, at the time, plaintiff claimed resulted in the loss of the very same project. In that matter, FKB won a defense verdict in favor of the attorney after a six-week trial in 2014.
In granting summary judgment in favor of the defendant co-owners/developers in this action, Justice Oing agreed with FKB’s Andrew R. Jones and Rachel Aghassi’s position that plaintiff was barred by the doctrine of judicial estoppel from alleging contradictory factual claims in this action from plaintiff’s position in the previous trial against the attorney. Namely, having previously testified under oath at trial (albeit unsuccessfully) that it was their attorney’s fault that the real estate project failed, plaintiff now was estopped from taking the contradictory position that the project’s failure was actually due to the defendant co-owners/developers. In doing so Justice Oing found that the plaintiff’s previous trial “testimony constitutes, at a minimum, judicial admissions that defendants were not responsible for the project’s failure” and that plaintiff’s affidavit submitted in opposition to summary judgment “is inconsistent and irreconcilable with prior testimony.”
Further, Justice Oing agreed with FKB’s position that plaintiff failed to submit credible evidence to support its contention that defendants breached their contractual financial obligations, finding plaintiff’s assertions “amount to little more than speculation.” Justice Oing’s decision agreed that plaintiff’s theories of liability were contradictory, inconclusive and not supported by the evidence in the record and dismissed all claims in entirety.