Menachem J. Kastner

Secured dismissal of claims brought against the board of managers (the “Board”) of a commercial condominium building in NYC’s Times Square Theater District commenced by four non-owner mortgage lenders who sought a declaratory judgment determining borrowers’/retail unit owners’ obligations under the condo governing documents to pay common charges for Local Law 11 façade work (a/k/a FISP) and purported damages associated with the same. We moved to dismiss the complaint on various grounds, and notwithstanding the subsequent purchase of the subject retail unit by one of the plaintiffs at a foreclosure auction while that motion was pending, the Court dismissed the case in its entirety and, in its decision, largely adopted our arguments on behalf of the Board that the four plaintiffs lacked standing under the condo governing documents to dispute the Board’s allocation of FISP-related common charges because they were not unit owners when they commenced their lawsuit and that the one plaintiff’s acquisition of the unit after the litigation was commenced did not retroactively cure plaintiffs’ lack of standing.

Obtained a favorable ruling in Supreme Court, New York County, on behalf of Mario Batali and Lidia Bastianich in a suit brought by a neighboring property owner who alleged that the air conditioning units and kitchen exhaust pipe at the clients' restaurant, Babbo, were in violation of New York City's building code, and that newly installed air conditioning units were too noisy and caused vibrations. Our team obtained evidence that played a significant role in the Court's decision by personally climbing to the top of the building to photograph the allegedly offending machinery.

Secured reversal of an order under which a New York City rent-controlled apartment had been subjected to luxury deregulation after expiration of J-51 benefits. In granting reversal, the court, in a case of first impression, distinguished between rent-stabilized apartments and rent-controlled apartments based on the difference in statutory language and concluded that, while a rent-stabilized apartment can be again subject to luxury deregulation upon expiration of the J-51 benefits, a rent-controlled apartment would not be subject to luxury deregulation upon expiration of J-51 benefits. See Matter of RAM I LLC. v. New York State Department of Housing and Community Renewal, 123 A.D.3d 102 (1st Dept. 2014).

Won summary judgment, in a commercial summary holdover proceeding, for a landlord that terminated a tenant's lease for failure to pay rent after having served the tenant with a notice of default providing an opportunity to cure. In granting summary judgment to the landlord, the court rejected the tenant's argument that the notice was deficient. BP 510 Madison LLC v Prosiris Capital Mgt. LLC,  2019 NY Slip Op 51782(U) (Civ. Ct. N.Y. Co., October 28, 2019).

Won an appeal on behalf of the landlord in a dispute involving a café-operator tenant’s failure to pay rent in which the key issue before the court was whether the corporate veil could be pierced. On appeal, Menachem obtained reversal of the lower court’s dismissal of the piercing corporate veil claim and obtained dismissal of almost all of the defendant’s affirmative defenses. BP 399 Park Avenue LLC v. PRET 399 Park, Inc., et al., 150 A.D.3d 507 (1st Dept. 2017). 

Secured an appellate victory for a cooperative corporation and members of its board in a suit, spanning two decades, filed by a famous fashion designer who sought to perform substantial alterations to his penthouses to create an enormous residence atop the building owned by the corporation. The unanimous Appellate Division not only dismissed the entire complaint against all but two of the individual defendants, but also dismissed various claims against the corporation at the pleading stage — including violation of the business corporations law, breach of fiduciary duty, fraudulent misrepresentation, and negligent misrepresentation — for which the plaintiff sought damages in excess of $50 million on each of four of the causes of action. Tahari v 860 Fifth Ave. Corp., 214 A.D.3d 491 (1st Dept. 2023).

Secured a unanimous appellate victory in New York state court, allowing a case brought under New York's Debtor & Creditor Law and common law to move forward after six years of litigation. In its ruling, the Appellate Division reversed the trial court's denial of our client's motion for summary judgment on various statutory causes of action asserted in the complaint and its grant of the defendants' cross-motion seeking dismissal of the entire complaint. Further, the Appellate Division granted our client's motion for summary judgment as to liability for certain interest payments and a related-party security interest, and denied defendants' cross-motion, thereby reinstating not only the complaint but also the client's cause of action for legal fees under the Debtor & Creditor Law.

Won a complete victory on behalf of the landlord in a closely watched commercial landlord-tenant dispute before the New York Appellate Division (First Department). At the outset of the COVID-19 pandemic, The Gap (the international clothing store) stopped paying rent for many of its retail stores, including the premier space in the building owned by our client in lower Manhattan. The Gap preemptively sued for a declaration that the lease had terminated because of the pandemic, citing the doctrines of “frustration of purpose” and “impossibility of performance,” among other arguments. The trial court partially granted our motion to dismiss, but left the “frustration” and “impossibility” claims and defenses in the case. On appeal, after oral argument by Menachem, the Cozen O'Connor team secured dismissal of all of The Gap’s remaining claims, and the company was ordered to pay both back rent and future rent. The case was the first time the appellate courts in New York had directly addressed the ubiquitous “frustration” and “impossibility” defenses relating to the pandemic. Gap, Inc. v 170 Broadway Retail Owner, LLC, 195 A.D.3d 575 (1st Dept 2021). 

Secured an appellate victory on behalf of one of the largest landlords in the New York area, which sued a shell company that abandoned space it had leased in one of the client's buildings, also naming as a defendant the tenant's parent company on theories of alter ego and piercing the corporate veil. We appealed the trial court's decision which granted the defendants' motion for summary judgment and dismissed the complaint. We argued on appeal that the shell and the parent were jointly and severally liable to our client for all obligations under the lease through its expiration date, which totaled more than $1 million, as well as attorneys' fees. In a unanimous reversal, the appellate court agreed that the parent was the alter ego of the shell, reinstated the complaint, and remanded the case for trial on only one issue.

Obtained pre-answer dismissal of a complaint filed in New York alleging claims of forgery and fraud in connection with a dispute between citizens of China and Norway over the ownership of real property in China. In granting the motion to dismiss, the court accepted our arguments that the claims against our clients (individual co-defendants) were time-barred and precluded by a 2015 judgment of a Chinese court pursuant to the doctrines of comity and res judicata, and in the alternative should be dismissed on forum non-conveniens grounds.

US Bancorp Equipment Finance v. Abraham Rubashkin, et al., ___ A.D.3d ___, (2d Dept. September 19, 2012)