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SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT --------------------------------------------------------------------X GRONICH & COMPANY, INC., Plaintiff-Respondent, -against- LONGSTREET ASSOCIATES L.P., Defendant-Appellant. --------------------------------------------------------------------X LONGSTREET ASSOCIATES L.P., Third-Party Plaintiff, -against- 767 FIFTH AVENUE, LLC, a.k.a. TRUMP 767 FIFTH AVENUE, LLC, 767 INTERMEDIATE LLC, 767 LLC, 767 MANAGER LLC, DONALD J. TRUMP, as managing member of 767 MANAGER LLC, JOHN DOE I–V (A PERSON, PERSONS, OR ENTITY WHOSE IDENTITY IS NOT KNOWN), and JOHN DOE VI–X (A PERSON, PERSONS, OR ENTITY WHOSE IDENTITY IS NOT KNOWN), Third-Party Defendants. --------------------------------------------------------------------X
Index No.: 650846/2012 CIVIL APPEAL PRE-ARGUMENT STATEMENT PURSUANT TO § 600.17 OF THE RULES OF THE APPELLATE DIVISION__________ Appeal taken from: Decision/Order of the Supreme Court County of New York Justice Joan A. Madden Entered April 8, 2015 Appeal taken from: Judgment of the Supreme Court County of New York Entered April 29, 2015
Defendant-Appellant Longstreet Associates L.P. (“Longstreet”), by its undersigned
counsel, for its pre-argument statement pursuant to Section 600.17 of the Rules of the Supreme
Court of the State of New York, Appellate Division, First Department, state as follows:
1. TITLE OF ACTION: The title of this action is as it appears in the caption.
2. FULL NAMES OF THE ORIGINAL PARTIES AND ANY CHANGES IN THE
FILED: NEW YORK COUNTY CLERK 05/06/2015 02:30 PM INDEX NO. 650846/2012
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 05/06/2015
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PARTIES: The full names of the original parties are Gronich & Company, Inc. (Plaintiff
“Gronich”) and Longstreet Associates L.P. (“Defendant”). The following parties were
subsequently added as Third-Party Defendants: 767 Fifth Avenue, LLC, a.k.a Trump 767 Fifth
Avenue, LLC; 767 Intermediate LLC; 767 LLC; 767 Manager LLC; Donald J. Trump, as
managing member of 767 Manager LLC; John Doe I-V (A Person, Persons, or Entity Whose
Identity is Not Known); and John Doe VI-X (A Person, Persons, or Entity Whose Identity is Not
Known).
3. NAME, ADDRESS AND TELEPHONE NUMBER OF COUNSEL FOR
APPELLANT:
STAGG, TERENZI, CONFUSIONE & WABNIK, LLP Thomas E. Stagg ([email protected]) 401 Franklin Avenue, Suite 300 Garden City, New York 11530 (516) 812-4500 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Leslie Gordon Fagen ([email protected]) 1285 Avenue of the Americas New York, New York 10019 (212) 373-3000
4. NAME, ADDRESS AND TELEPHONE NUMBER OF COUNSEL FOR
RESPONDENT:
LAW OFFICE OF LIONEL A. BARASCH Lionel A. Barasch, Esq. 110 East 59th Street, 22nd Floor New York, New York 10022 (212) 838-0286 GIBNEY, ANTHONY & FLAHERTY, LLP Wm. Lee Kinnally, Jr., Esq. 665 Fifth Avenue New York, New York 10022 (212) 688-5151
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5. NAME, ADDRESS AND TELEPHONE NUMBER OF COUNSEL FOR
THIRD-PARTY DEFENDANTS:
WINSTON & STRAWN LLP Adam J. Kaiser 200 Park Avenue New York, New York 10166 (212) 294-4617
6. COURT FROM WHICH APPEAL IS TAKEN: This appeal is taken from a
decision and order of the Supreme Court, New York County (Madden, J.) entered in the office of
the Clerk of New York County on April 9, 2015 (the “Order”). A copy of the Order is annexed
hereto as Exhibit A.
This appeal is also taken from a Judgment of the Supreme Court of the State of
New York entered in the office of the Clerk of New York County on April 29, 2015 (the
“Judgment”). A copy of the Judgment is annexed as Exhibit B.
7. NATURE AND OBJECT OF CAUSE OF ACTION: Plaintiff brought suit to
recover a claimed brokerage commission pursuant to the parties’ agreement in connection with
FAO Schwarz’s commercial lease in a building that Defendant previously owned. Plaintiff
claimed that its right to a commission was triggered by FAO’s Schwarz’s successor in interest
exercising an option to extend the lease for five years beginning in 2012.
Defendant subsequently filed a third-party complaint against Third-Party
Defendants, including the purchaser of the building and related entities and individuals.
Defendant claimed that Third-Party Defendants had assumed liability to Plaintiff and had agreed
to indemnify Defendant pursuant to the contract of sale.
8. RESULT REACHED IN THE COURT BELOW: Plaintiff and Defendant filed
competing motions for summary judgment. The proceedings against Third-Party Defendants
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were stayed pending resolution of those motions. The Court granted Plaintiff’s motion for
summary judgment and entered judgment in favor of Plaintiff and against Defendant in the
amount of $2,540,337.19. The Court denied Defendant’s cross-motion for summary judgment.
9. GROUNDS FOR SEEKING REVERSAL: Defendant seeks reversal of the Order
and Judgment on the grounds that the Supreme Court erred as a matter of law in holding that
Defendant is contractually obligated to pay Plaintiff a brokerage commission pursuant to the
parties’ agreement.
First, Defendant contends that the Court erred as a matter of law in holding that
Defendant had not satisfied the contractual requirements for being relieved of liability under the
parties’ commission agreement. Specifically, Defendant contends that the Court erred in holding
that the purchaser of the building did not assume Defendant’s obligation to Plaintiff under the
commission agreement, and that Defendant failed to deliver to Plaintiff an agreement reflecting
such an assumption. Defendant contends that the purchaser of the building assumed the
obligation both under the terms of the contract of sale and as a result of expressly assuming all of
the obligations of the landlord in the underlying lease, one obligation of which was to pay
Plaintiff pursuant to the separate commission agreement.
Further, Defendant contends that the Court also erred as a matter of law in
holding that Plaintiff’s entitlement to a commission was triggered upon FAO Schwarz’s
successor in interest exercising the lease extension option. Defendant contends that the language
of the agreement only applies if FAO Schwarz itself exercised the option, which did not occur
here.
Therefore, Defendant contends that the Court erred as a matter of law in holding
that Defendant is contractually obligated to pay Plaintiff a brokerage commission pursuant to the
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parties’ agreement. Accordingly, the Order and Judgment should be reversed and Longstreet’s
cross motion for summary judgment should be granted.
10. RELATED ACTION OR PROCEEDING: There are no related actions or
proceedings other than the third-party complaint filed against Third-Party Defendants in this
action. Third-Party Defendants have yet to serve their answer to the Third-Party Complaint.
11. ADDITIONAL APPEALS: None.
Dated: Garden City, New York May 6, 2015
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP By: /s/ Leslie Gordon Fagen
Leslie Gordon Fagen ([email protected]) 1285 Avenue of the Americas New York, New York 10019 (212) 373-3000
STAGG, TERENZI, CONFUSIONE & WABNIK, LLP
Thomas E. Stagg ([email protected]) 401 Franklin Avenue, Suite 300 Garden City, New York 11530 (516) 812-4500
Attorneys for Defendant-Appellant Longstreet Associates L.P.
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TO: Clerk of the Court Supreme Court of the State of New York – County of New York 60 Centre Street New York, New York 10007 Lionel A. Barasch, Esq. Law Office of Lionel A. Barasch Attorneys for Plaintiff-Respondent Gronich & Company, Inc. 110 East 59th Street, 22nd Floor New York, New York 10022 (212) 838-0286 Wm. Lee Kinnally, Jr., Esq. Gibney, Anthony & Flaherty, LLP Attorneys for Plaintiff-Respondent Gronich & Company, Inc. 665 Fifth Avenue New York, New York 10022 (212) 688-5151
EXHIBIT A
EXHIBIT B
