Scott Mollen, Partner at Herrick, Feinstein LLP Realty Law Digest
In his Realty Law column, Scott Mollen discusses the contracts case '70-35 113th Street Holdings LLC. v. Auberge Grand Central LLC,' which illustrates how some people will claim that post default dialogue constituted a waiver, or modification of a contract provision.
February 01, 2022 at 11:39 AM
13 minute read
Breach of Contract—Reformation—Collateral Estoppel—Res-Judicata—Complaint Dismissed on Grounds of Collateral Estoppel and Res-Judicata—Defendant Had Not Breached Promise To Provide Financing—CPLR 3002—Loss of a Breach of Contract Action Does Not Bar Subsequent Action To Reform the Agreement and to Enforce the Contract as Reformed—Plaintiff Attempted to "Prove Modification through Course of Conduct under the Guise of Reformation"
A court granted a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the grounds of collateral estoppel and res-judicata.
This dispute involved the right to purchase a property that had previously been occupied by a hospital. "A" owned a mortgage on the property. "B" had purchased the property after "A" had commenced a foreclosure action. "A" had obtained a judgment in its foreclosure action and the property was to be sold at auction. In January 2014, a referee held a foreclosure auction. Before the auction, "A" assigned the mortgage to "B."
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