CBRE, Inc. v. The Pace Gallery of New York, Inc. et al (1:17-cv-02452-ALC-SN)

FINAL JUDGMENT: Accordingly, Plaintiff shall have judgment in the amount of $6,308,604.20, plus interest in the amounts of $4,216,437.14 on the first cause of action and $66,696.95 on the second cause of action, for a total judg ment in the amount of $10,591,738.29, as against Defendants The Pace Gallery of New York, Inc. and The Pace Gallery, LLC, d/b/a Pace Gallery ("Defendants"). On the same day, the jury rendered a verdict in favor of Plaintiff on Defen dants' counterclaims for breach of fiduciary duty and breach of contract. Defendants shall take nothing by their counterclaims, which are dismissed with prejudice. SO ORDERED. The Clerk of Court is respectfully requested to enter final judgment and close the case. (Signed by Judge Andrew L. Carter, Jr on 12/23/2022) (ate)

ORDER: The Court is in receipt of Plaintiff's Proposed Judgment at ECF No. 350. Accordingly, Defendants are directed to file any objections to the Proposed Judgment on or before December 21, 2022. (Signed by Judge Andrew L. Carter, Jr on 12/15/2022) (tg)

ORDER granting in part and denying in part (Document 308) Motion to Quash; granting in part and denying in part (Document 338) Letter Motion for Discovery; denying (Document 344) Motion for Judgment as a Matter of Law; denying (Document 346) Motion for Judgment as a Matter of La w. In light of the December 8, 2022 jury verdict, Plaintiff is directed to file a proposed judgment by December 23, 2022. Additionally, the Court issued the following decisions during trial for the reasons stated on the record: The motion to quash a t ECF No. 308 was GRANTED IN PART and DENIED IN PART. The letter motion to strike Pace's second counterclaim and to preclude evidence of Pace's damages at ECF No. 338 was GRANTED IN PART and DENIED IN PART. CBRE's motion for judgment as a matter of law at ECF No. 344 was DENIED. Pace's motion for judgment as a matter of law at ECF No. 346 was DENIED. The Clerk of Court is respectfully requested to terminate the motions at ECF No. 308, 338, 344 and 346.. (Signed by Judge Andrew L. Carter, Jr on 12/12/2022) (kv)

ORDER denying (Document 273) Motion for Pre-Trial; granting in part and denying in part (Document 277) Motion to Preclude; denying (Document 291) Motion in Limine; granting (Document 293) Motion in Limine; denying (Document 295) Motion in Limine. A final pre-trial conference took place before the Court on November 22, 2022 and issued the following orders: Pace's motion to limit the expert testimony of CBRE expert Richard Michaels at ECF No. 273 was DENIED. CBRE's motion to preclude the expert testimony of Suzy A. Rein gold ("Reingold") at ECF No. 277 was GRANTED IN PART and DENIED IN PART. Reingold will not be permitted to testify at trial as to the amount of Pace's estimated damages. Pace's motion in limine to exclude evidence of benefit t o the principal and for bifurcation at ECF No. 291 was DENIED. CBRE's motion in limine to limit testimony and argument on resolved issues at ECF No. 293 was GRANTED IN PART and DENIED IN PART. Plaintiff's motion was granted to the exte nt it seeks to preclude evidence that is contrary to issues previously resolved by the Court and evidence which seeks to challenge the validity of the March and November 2014 Agreements. Plaintiff's request for the Court to read a written statement to the jury prior to trial was DENIED. CBRE's motion in limine to limit the use of Defendants' deposition designations atECF No. 295 was DENIED. Defendants shall be able to use deposition designationsin accordance with the Feder al Rules of Evidence. The Court reserved decision on the motion to quash filed by non-party Lisa Siegel atECF No. 308. As previously stated on the record, jury selection is set to begin at 9:00 a.m. on November 29, 2022. The remainder of trial will begin at 9:30 a.m. each day. The Clerk of Court is respectfully requested to terminate the pending motions at ECF No. 273, 277, 291, 293 and 295.. (Signed by Judge Andrew L. Carter, Jr on 11/28/2022) (ate)

ORDER denying without prejudice to renewal by formal motion (Document 325) Letter Motion for Discovery. The Court is in receipt Defendants' letter motion at ECF No. 325 asking the Court to "order [that] Mr. Glimcher is not required to appear i n the Courthouse on December 2, 2022 and shall be available from December 5, 2022." Defendants' motion is DENIED with leave to renew. The motion does not include any caselaw or basis upon which the Court may issue such an order. If Defen dants seek to renew their motion, they must submit a letter brief in support of their request by November 23, 2022 at 5:00 p.m. The brief in support of the motion must include: (1) law (including authoritative caselaw) supporting their request; (2 ) when Mr. Glimcher first knew about the dates for this trial; (3) when Mr. Glimcher scheduled his travel plans; and (4) when counsel for Defendants first learned about Mr. Glimcher's travel plans during the week of November 28. If Plaintiff seeks to oppose the motion, it may submit a brief in opposition by November 25, 2022 at 5:00 p.m. The Clerk of Court is respectfully requested to terminate the motion at ECF No. 325. (Signed by Judge Andrew L. Carter, Jr on 11/23/2022) (ate)

ORDER: The Court is in receipt non-party Lisa B Siegel's motion to quash filed by counsel for Plaintiff at ECF No. 308. Defendants are directed to file a response by November 17, 2022. ( Responses due by 11/17/2022) (Signed by Judge Andrew L. Carter, Jr on 11/16/2022) (ate)

ORDER: A telephonic conference shall be held on Friday, November 4, 2022 at 10:30 a.m. All parties shall appear and contact the Court at 1-888-363-4749 (access code: 3768660). ( Telephone Conference set for 11/4/2022 at 10:30 AM before Judge Andrew L. Carter Jr.) (Signed by Judge Andrew L. Carter, Jr on 11/3/2022) (ate)

ORDER: The Court is in receipt of Defendants' letter asking the Court to set a November 15, 2022 deadline for motions in limine and Plaintiff's opposition letter asking the Court to set a November 7, 2022 deadline. (ECF Nos. 272, 280.) Defendants' requested briefing scheduled is DENIED. Any further motions in limine shall be filed by November 7, 2022 and oppositions shall be filed by November 14, 2022. The parties are encouraged to meet and confer before seeking any further extensions from the Court. (Signed by Judge Andrew L. Carter, Jr on 11/1/2022) ( Motions due by 11/7/2022., Responses due by 11/14/2022) (ks)

ORDER: A hearing on the pending motions in limine was held on October 27, 2022. The Court DENIED Plaintiff's request for clarification at ECF No. 250. Based on Defendants' representation on the record that they do not contest the valid ity of the March 2014 and November 2014 agreements, Plaintiff withdrew its claims for unjust enrichment and quantum meruit. Accordingly, Defendants' motion to strike at ECF No. 252 and Plaintiff's request for bifurcation at ECF No. 249 a re DENIED AS MOOT. The trial set for November 28, 2022 shall proceed as a unified jury trial. As stated on the record, the Court will extend the Daubert briefing schedule: opening briefs shall be filed by October 28, 2022; responses are due by Nov ember 4, 2022; and any replies are due by November 11, 2022. The parties shall file their proposed voir dire, jury instructions (including the limiting instructions discussed on the record) and verdict form by November 15, 2022. ( Responses due by 11/4/2022, Replies due by 11/11/2022.) (Signed by Judge Andrew L. Carter, Jr on 10/27/2022) (ate)

ORDER: The telephonic conference originally scheduled for October 26 at 2:30 p.m. is adjourned to Thursday, October 27, 2022 at 2:00 p.m. All parties shall appear and contact the Court at 1-888-363-4749 (access code: 3768660). ( Telephone Conference set for 10/27/2022 at 02:00 PM before Judge Andrew L. Carter Jr.) (Signed by Judge Andrew L. Carter, Jr on 10/26/2022) (ate)

ORDER: If either party objects to the Court's scheduling order at ECF No. 262, it may file a letter (not to exceed three pages) explaining the basis for their objection and proposing alternate dates. Any letter must be filed by October 20, 2022. The parties are reminded that, in accordance with the undersigned's individual rules, all communication with the Court should be via ECF, unless instructed otherwise. (Signed by Judge Andrew L. Carter, Jr on 10/18/2022) (ate)

ORDER: The Order dated July 21, 2022 (ECF No. 246) is hereby VACATED in part. Plaintiff's brief remains due on July 25, 2022 and Defendants' opposition remains due on August 15, 2022. Plaintiff's motion shall only address (1) whet her "Defendants' Second Counterclaim for breach of contract and all related affirmative defenses" were dismissed and (2) "bifurcation of this action." ECF No. 244 at 1. Defendants' opening brief shall be due on August 1 5, 2022 and Plaintiff's response to Defendants' brief is due on September 6, 2022. Defendants shall submit one brief in opposition to Plaintiff's motion and one brief addressing the following issues: that "Plaintiff cannot proc eed at trial under both its 6th cause of action for unjust enrichment and its 5th cause of action for quantum meruit and under both its causes of action for breach of contract and quantum meruit." ECF No. 247 at 2. Both parties shall have the opportunity to submit motions in limine at a later date. ( Responses due by 8/15/2022, Replies due by 9/6/2022.) (Signed by Judge Andrew L. Carter, Jr on 7/22/2022) (ate)

ORDER: As discussed at the conference held on June 27, 2022, Plaintiff's briefing is due by July 25, 2022 and Defendants' response is due August 15, 2022. A telephonic pre-trial conference will be held on November 17, 2022 at 2:00 p.m. Jury selection will being on November 28, 2022. ( Responses due by 8/15/2022), ( Telephone Conference set for 11/17/2022 at 02:00 PM before Judge Andrew L. Carter Jr..) (Signed by Judge Andrew L. Carter, Jr on 6/30/2022) (ate)

SETTLEMENT CONFERENCE ORDER: The Court has received a letter from Defendant Pace Gallery responding to Plaintiff's letter filed at ECF No. 234. Defendant is reminded that all communications other than ex parte communications regarding sett lement are required to be filed on the public docket. Defendant's emailed request to place Plaintiff's letter under seal is DENIED. Because Plaintiff requests a settlement conference, and because the Court has urged the parties to make a good-faith effort to resolve this five-year-old litigation, a settlement conference is scheduled for Monday, May 9, 2022, at 2:00 p.m. Eastern Time to take place telephonically. Prior to the conference, the Court will share the dial-in information with the parties. (And as further set forth herein.) SO ORDERED. (Telephone Conference set for 5/9/2022 at 02:00 PM before Magistrate Judge Sarah Netburn.) (Signed by Magistrate Judge Sarah Netburn on 4/29/2022) (jca)

ORDER re: (Document 184) FIRST MOTION for Summary Judgment By Defendants. filed by The Pace Gallery of New York, Inc., The Pace Gallery LLC, (Document 188) MOTION for Partial Summary Judgment . filed by CBRE, Inc.. Accordingly, CBRE is GRANTED summary judgment that it was relieved of its duty to look to Wenat for a commission by virtue of Pace's anticipatory breach. Pace's motion for summary judgment is correspondingly DENIED. In summary, the Court GRANTS summary judgm ent to CBRE on the following issues: Delivery was not a condition precedent to the formation of the March 2014 Agreement; The March 2014 and November 2014 Agreements confer exclusive rights to lease onCBRE, which therefore need not prove it is the procuring cause of the Wenat Leases; The March 2014 and November 2014 Agreements are not unenforceable for lack of a definite commission term; The REBNY Ethics Guidelines and CBRE Website are not incorporated into the Agreements; "Taking add itional premises at 534 West 25th Street" includes Pace signing a lease for the New Building, which is located at that address; The misuse of corporate titles, retaliation, and automatic renewal clause defenses or counterclaims are abandoned, and summary judgment is granted in CBRE's favor; and CBRE was relieved of its duty to "look to" Wenat for a commission after Pace made clear it did not believe CBRE was entitled to a commission for the Wenat Leases, which was an anticipatory breach. The Parties' motions for summary judgment are otherwise DENIED. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 3/30/2021) (rj)

ORDER denying without prejudice (Document 181) Letter Motion to Seal; denying without prejudice 182 Letter Motion to Seal. Defendants filed a letter motion to seal certain portions of documents. (ECF Nos. 181, 182.) As this letter motion to seal does not a ccompany a substantive motion, it is the Court's view that these materials should not be part of the record at this time. The Court therefore DENIES Defendants' motion without prejudice and respectfully directs the Clerk of Court to str ike ECF No. 182. The Court also DENIES without prejudice Plaintiff's request for an order permitting the public filing of certain documents. (ECF No. 180.) To the degree the Parties ask the Court to consider the sealing of documents in suppor t of the upcoming briefing, the Party filing the document should file a motion to seal and redact the publicly filed version of the documents to the extent requested by the Party seeking sealing. The Party seeking sealing should file an affidavit or declaration in support of such sealing motion explaining to the Court the "countervailing factors" that would override the presumption of public 5/21/2020 access to judicial documents and permit sealing. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). (Signed by Judge Andrew L. Carter, Jr on 5/21/2020) (rj)

ORDER: The Clerk of Court is respectfully requested to strike the expert reports filed on the docket at ECF Nos. 132 and 133. SO ORDERED. (Signed by Magistrate Judge Sarah Netburn on 5/18/2020) (ks)

ORDER: The Court is in receipt of the Parties' pre-motion conference letters, concerning their anticipated motions for summary judgment. See ECF Nos. 167-70. The Parties' requests for pre-motion conferences are DENIED. The Parties are h ereby ORDERED to adhere to the following briefing schedule: Motions for Summary Judgment: March 5, 2020, Oppositions to Motions for Summary Judgment: April 7, 2020, Replies to Opposition: April 21,2020. SO ORDERED. Motions due by 3/5/2020., Responses due by 4/7/2020, Replies due by 4/21/2020. (Signed by Judge Andrew L. Carter, Jr on 2/4/2020) (rj)

ORDER: The parties do not explain the purpose of filing their expert materials unaccompanied by a relevant motion, and the Court is unaware of any reason to do so. It is the Court's view that these materials should not be part of the record at this time. That said, if the parties persist on filing these documents on the record, the request to file under seal is DENIED without prejudice, as neither party has made a showing of "countervailing factors" that would override the presumption of public access to judicial documents. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). (Signed by Magistrate Judge Sarah Netburn on 1/14/2020) (ras)

OPINION AND ORDER re: (Document 23) FIRST MOTION to Dismiss for Lack of Jurisdiction Lack of subject matter jurisdiction. filed by The Pace Gallery of New York, Inc., The Pace Gallery LLC.For the foregoing reasons, Defendants' motion to dismiss is DENIED. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 2/6/2018) (rj)