Cerco Bridge Loans 6 LLC v. Schenker
- Ho
- 1:23-cv-11093
- U.S. District Court · Southern District of New York
- 2
In Cerco Bridge Loans 6 LLC v. Schenker, Judge Ho denied defendants’ request to file a sur-reply because they showed no good cause or extraordinary circumstances.
Gregg Schenker and Steven Hornstock were not permitted to file the requested supplemental declaration as a sur-reply; the underlying contract dispute remained unresolved by this order.
What happened
In Cerco Bridge Loans 6 LLC v. Schenker, defendants Gregg Schenker and Steven Hornstock asked to file a supplemental declaration as a sur-reply to Cerco Bridge Loans 6 LLC’s request for partial summary judgment. They said new facts involved Cerco’s alleged interference with a non-party borrower’s contractual efforts and alleged discovery misconduct.
Cerco opposed the request, arguing that defendants already knew the relevant facts, lacked standing to raise a claim of wrongful interference, and were not credible. The court found that defendants had not shown newly discovered relevant facts or explained how the alleged interference could affect the contract issues before the court. It also noted that sur-replies are allowed only in extraordinary situations for good cause.
The court denied defendants’ letter-motion. Judge Dale E. Ho did not decide the underlying contract dispute in this order.
The detailed version
- Cerco Bridge Loans 6 LLC v. Schenker · No. 1:23-cv-11093
- Ho
- June 17, 2024
Background
Defendants Gregg Schenker and Steven Hornstock asked for permission to file a supplemental declaration as a sur-reply to Cerco Bridge Loans 6 LLC’s cross-motion for partial summary judgment. A sur-reply is an additional filing submitted after a reply. Defendants asserted that new facts showed Cerco had tried to interfere with P8, a non-party borrower’s, efforts to obtain an estoppel certificate from its landlord, Silk & Halpern 57, LLC. They also referred to alleged ongoing discovery misconduct.
Cerco opposed the request. It argued that defendants were barred from relying on facts available before their opposition deadline, that defendants lacked standing to assert tortious interference, and that their arguments lacked credibility.
Court’s Analysis
The court found that defendants had not shown good cause for filing the supplemental declaration. It noted that defendants had been informed of Cerco’s position on May 15, 2024, two days before their filing deadline, so they had not shown that they learned new relevant facts. The court also said defendants had not explained how Cerco’s alleged interference with defendants’ evidence-gathering efforts could be relevant to the pending cross-motions for partial summary judgment.
The court characterized the dispute before it as a contract dispute concerning the guaranty of value. It noted that the parties had agreed that neither side could envision discovery needed to resolve the contract’s meaning. The court further explained that its rules generally do not allow sur-reply memoranda unless an extraordinary situation provides good cause, such as a need to respond to a new argument raised for the first time in a reply. Defendants did not meet that standard.
Disposition and Effect
The court denied defendants’ letter-motion for leave to file a supplemental declaration as a sur-reply. This order addressed only whether defendants could submit the additional filing; it did not resolve the underlying contract dispute or the cross-motion for partial summary judgment.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.