CB Frontier LLC v. LStar Capital Finance II, Inc. , 153 A.D.3d 1180 ( 2017 )

CB Frontier LLC v LStar Capital Fin. II, Inc. (2017 NY Slip Op 06621)

CB Frontier LLC v LStar Capital Fin. II, Inc.

2017 NY Slip Op 06621

Decided on September 26, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 26, 2017
Friedman, J.P., Richter, Moskowitz, Gesmer, JJ.

4501 654339/16

[*1]CB Frontier LLC, Plaintiff-Respondent,

v

LStar Capital Finance II, Inc., Defendant-Appellant.

Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (Daniel L. Carroll of counsel), for appellant.

Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., New York (Kevin N. Ainsworth of counsel), for respondent.

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.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 26, 2017

CLERK