East Fordham De LLC v. U.S. Bank National Ass'n , 146 A.D.3d 610 ( 2017 )

East Fordham DE LLC v U.S. Bank N.A. (2017 NY Slip Op 00407)

East Fordham DE LLC v U.S. Bank N.A.

2017 NY Slip Op 00407

Decided on January 19, 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 January 19, 2017
Andrias, J.P., Saxe, Feinman, Gische, Kahn, JJ.

260551/14 -5897

[*1] East Fordham DE LLC, Plaintiff-Respondent,

v

U.S. Bank National Association, as Trustee, as Successor in Interest to Bank of America, N.A., etc., et al., Defendants-Appellants.

Kilpatrick Townsend & Stockton LLP, New York (Ian M. Goldrich of counsel), for appellants.

Oquendo Deraco PLLC, New York (Ricardo E. Oquendo of counsel), for respondent.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered on or about August 12, 2015, which, inter alia, directed defendants to close on the subject refinancing transaction based upon the value of the property as established by the parties' completed appraisals, unanimously reversed, on the law, without costs, and the order vacated.

In deciding plaintiff's motion for a preliminary injunction, the court erred in reaching a determination on the merits of the ultimate relief sought (see Residential Bd. of Mgrs. of Columbia Condominium v Alden , 178 AD2d 121 [1st Dept 1991]). Issues of fact exist, including whether defendants waived their right to contest the method used by the parties' appraisers to determine the value of the property.

M-5760 &

M-5897 - East Fordham DE LLC v U.S.

Bank National Association,

as Trustee, as Successor in

Interest to Bank of America,

N.A.

Motion to strike portions of

briefs and for sanctions denied.

Cross motion to file supplemental

record and for sanctions granted

as to the supplemental record, and

otherwise denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 19, 2017

CLERK