2018 NY Slip Op 51958

Citation
2018 NY Slip Op 51958
Jurisdiction
New York (state)
Source verification
cross_accepted_sealed
Original Source
https://www.nycourts.gov/reporter/3dseries/2018/2018_51958.htm ↗

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that Stable would have to conduct further review, the amended complaint, by admitting that the
review was only preliminary, in essence concedes that further review was anticipated and
required. Further, the amended 2017 complaint (¶ 51), while alleging that Dogwood LLC
provided Stable with Dogwood LLC's plans in about May 2015, does not allege that those plans
were complete and ready for a full review by Stable when Spitzer reviewed them.

The amended complaint also acknowledges that the Board halted the review process and
[*15]never rendered any determination as to whether Dogwood
LLC's plans would be approved. It is readily apparent from the allegations in the amended 2017
complaint that Stable did not refuse to consent to Dogwood LLC's plans. Instead, as alleged in
the amended 2017 complaint, because plaintiffs failed to pay "legal and other professional
fees,"[FN10]
which Stable claimed it was owed, pursuant to the Holdover Case Agreement, Stable refused to
further review Dogwood LLC's plans, never reached their merits, and, thus, never rejected them
(except to the limited extent set forth preliminarily in Peterson's October 7, 2015 letter).
See Peterson affidavit in support of motion to dismiss amended 2017 complaint, exhibit
1, Amended 2017 complaint, ¶¶ 57- 58 ("Board improperly halted all further review
of plans . . . and refused to further review plans, much less approve them, until it got paid in
full"); id., ¶ 61 (Board refused to review plans, unless paid in full). Based on the
foregoing, the amended 2017 complaint's fourth cause of action, premised on Stable's breach of
that portion of paragraph 21 (a) of the proprietary lease, which requires that consent to alterations
not be unreasonably withheld (see Amended 2017 complaint, ¶ 153), in that the