23-429-cv Brian A. Sidman, et al. v. Concord Arena Parking, LLC, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by federal rule of appellate procedure 32.1 and this court’s local rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the federal appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of February, two thousand twenty-four.

PRESENT: BARRINGTON D. PARKER, GERARD E. LYNCH, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

BETSY VONN GINN, WILLIAM T. HORNER, BRIAN A. SIDMAN, BAS PARKING GROUP PACIFIC, LLC,

Plaintiffs-Appellants,

v. 23-429-cv

CONCORD ARENA PARKING, LLC, ARIEL JACOBOV, Defendants-Appellees.*

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. _____________________________________

FOR PLAINTIFFS-APPELLANTS: BENJAMIN H. BRODSKY, Brodsky Fotiu- Wojtowicz, PLLC, Miami, FL.

FOR DEFENDANTS-APPELLEES: MATTHEW C. CAPOZZOLI, Leech Tishman Robinson Brog, PLLC, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern District

of New York (Amon, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and DECREED

that the judgment of the district court of March 21, 2023, is AFFIRMED.

Plaintiffs-Appellants Betsy Vonn Ginn, William T. Horner, Brian A. Sidman, and

BAS Parking Group Pacific, LLC (collectively, the “Plaintiffs”) appeal from the March 21,

2023, judgment of the district court denying their motion for partial summary judgment

and granting, in part, the cross-motion for summary judgment filed by Defendants-

Appellees Concord Arena Parking, LLC (“Concord”) and Ariel Jacobov (“Jacobov,”

together with Concord, the “Defendants”).

As relevant here, in May 2015, Plaintiffs executed an operating agreement with

Jacobov, the owner and operator of Concord, “to acquire, own and manage” a parking

garage and commercial retail space in Brooklyn, New York. The operating agreement

contained a “Drop Dead Date,” which specified the date by which the limited liability

2 company formed by the parties to the operating agreement must close on the properties.

The parties also executed a side letter agreement (the “Side Letter”) memorializing their

understanding of the operating agreement. The Side Letter contained, among other

things, a condition precedent to the parties’ obligations under the operating agreement.

Specifically, the Side Letter conditioned the purchase of the properties on the resolution

of certain “open issues relat[ed] to the scheduling” of the closing. Supp. App’x. at 78.

The “open issues” included restrictions on the seller’s ability to sell the properties and an

open mortgage on the properties.

By December 2015, with “open issues” still unresolved, Jacobov informed

Plaintiffs that he would not agree to further extensions of the Drop Dead Date and

advised them that after December 31, 2015, his fiduciary and contractual obligations to

them would cease and their right to participate in the deal would terminate.

Plaintiffs initiated this action on December 31, 2015. Subsequently, in November

2017, Concord, through Jacobov, purchased the parking garage on its own. Plaintiffs

filed their Third Amended Complaint (“TAC”) on April 6, 2020, which was the operative

complaint on the cross-motions for summary judgment. 1 The TAC asserts two claims:

1 Plaintiffs’ Second Amended Complaint, which was filed on March 17, 2016, alleged nine direct claims against Jacobov and/or Concord, which were all dismissed by the district court on March 14, 2019, either by concession of the parties or by rulings on motions for summary judgment. The district court, however, allowed the plaintiffs to file a motion for leave to amend

3 (1) breach of contract by anticipatory repudiation against both Defendants and (2) breach

of fiduciary duty against Jacobov based on his purchase of the parking garage. Plaintiffs

and Defendants both moved for summary judgment, and the district court granted

summary judgment, in part, in favor of Defendants. This appeal followed. We assume

the parties’ familiarity with the underlying facts, the procedural history, and the issues

on appeal, to which we refer only as necessary to explain our decision to affirm.

DISCUSSION

We review de novo a district court’s decision to grant summary judgment,

construing the evidence in the light most favorable to the party against whom summary

judgment was granted and drawing all reasonable inferences in that party’s favor. See

Sista v. CDC Ixis N. Am., Inc.,

, 168–69 (2d Cir. 2006). Summary judgment is

appropriate only if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

On appeal, Plaintiffs argue that the district court erred in interpreting the

condition precedent in the Side Letter as express rather than constructive and improperly

resolved the purported “ambiguity” in the condition precedent language on summary

to assert claims of breach of contract by anticipatory repudiation or claims related to Concord’s eventual purchase of the parking unit in November 2017. On April 1, 2020, the district court granted Plaintiffs’ motion for leave to amend.

4 judgment. Because these claims were never raised before the district court, they have

been waived. 2 The district court correctly concluded that the condition precedent in the

agreement was not satisfied.

Prior to this appeal, Plaintiffs never alleged that the Side Letter contained a

constructive, rather than an express, condition precedent. Accordingly, they may not do

so now. See Anderson Grp., LLC v. City of Saratoga Springs,

(2d Cir. 2015)

(“It is well settled that arguments not presented to the district court are considered

waived and generally will not be considered for the first time on appeal.”). In their reply

brief, Plaintiffs admit that they did not raise this argument below. See Reply Br. at 2

(“[Plaintiffs] acknowledge that they did not argue below that the ‘open issues’ condition

precedent in the Side Letter . . . was constructive rather than express.”). Therefore, this

argument must fail.

Similarly, Plaintiffs did not argue below that the condition precedent was

ambiguous. Rather, Plaintiffs took the opposite position before the district court. For

example, in their memorandum of law in support of the motion for partial summary

judgment, they argued that “[t]he parties’ business deal, memorialized in a wholly

unambiguous operating agreement and side letter, was simple.” Appellants’ App’x. at

2 Likewise, Plaintiffs’ remaining argument that the condition precedent, as interpreted by the district court, resulted in a forfeiture of their rights relies on the same waived claims and is unavailing.

5 719; id. at 734 (“Finally, even if there were any ambiguity with respect to the plain

meaning of the Side Letter, which there is not . . . .”). Therefore, Plaintiffs have also

waived the argument that the condition precedent is ambiguous. See Anderson Grp.,

.

* * *

For the foregoing reasons, the judgments of the district court denying Plaintiffs’

motion for summary judgment and granting Defendants’ motion for summary judgment

are AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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