Elmsmere Associates v. Gladstone , 545 N.Y.S.2d 136 ( 1989 )

Ellerin, J.,

dissents in a memorandum as follows: I dissent and would affirm the judgment in its entirety for the cogent reasons set forth in the decision rendered by Justice Kirschenbaum, after trial.

The finding that defendants fully intended to construct a building on the property in question is amply supported by the record. Moreover, the trial court’s interpretation of the phrase "substantial construction activity” as not being synonymous with physical construction, as plaintiff urges, is a most reasonable and realistic one. The detailing in the decision of the extensive steps taken by defendants, including among others the retention of an architect, mechanical engineer, construction engineer and various other experts, the filing of plans with the Building Department and the procuring of a bank commitment for a $58 million construction loan, more than support his conclusion that defendants had, as required under the agreement, commenced substantial construction activity.