CBRE, Inc. v. The Pace Gallery of New York, Inc.

Background

The court considered cross-motions to reconsider its March 30, 2021 order. That earlier order granted in part and denied in part CBRE’s motion for partial summary judgment and denied Pace’s motion for summary judgment in full. The earlier order determined, among other things, that Pace had not shown delivery was a condition required before the March 2014 Agreement could take effect; that factual disputes prevented summary judgment for either party on the faithless-servant theory; that Pace’s request to avoid paying CBRE a commission could constitute damages for a breach-of-fiduciary-duty claim involving October 2014 communications; that factual disputes remained on the duty of good faith and fair dealing; and that “additional premises” unambiguously included Pace’s lease at the New Building at 534 West 25th Street.

The Motions

CBRE asked the court to reconsider the part of the earlier order denying in part its motion for partial summary judgment on Pace’s counterclaims and defenses based on the faithless-servant doctrine, breach of fiduciary duty, and breach of the implied covenant of good faith and fair dealing. CBRE primarily challenged the court’s application of the faithless-servant doctrine and argued that Pace’s good-faith-and-fair-dealing counterclaim should be dismissed because it was based on the same facts as the fiduciary-duty counterclaim. CBRE alternatively asked the court to certify the earlier order for immediate appeal to the Second Circuit.

Pace asked the court to reconsider the earlier ruling concerning delivery requirements under New York regulation 19 NYCRR § 175.12 and the March 2014 Agreement. Pace also challenged the court’s interpretation of the “additional premises” language and its conclusion that the language was unambiguous. The court did not consider a declaration and exhibits attached to Pace’s motion because Pace had not been directed to file them or sought permission to do so.

Reconsideration Standard

The court explained that reconsideration is an extraordinary remedy granted sparingly. It is generally appropriate only when the court overlooked controlling decisions or factual matters previously presented, or when the moving party identifies an intervening change in controlling law, new evidence, clear error, or manifest injustice. A reconsideration motion may not be used to relitigate issues already decided or present previously rejected arguments under new theories.

Ruling on Reconsideration

The court held that neither motion met this strict standard. Neither party relied on an intervening change in controlling law or newly available evidence. Instead, both parties repeated arguments the court had already considered and addressed. The court specifically stated that it had considered and rejected Pace’s arguments about delivery requirements and the “additional premises” language.

The court also rejected CBRE’s challenge to the earlier refusal to grant summary judgment on the faithless-servant counterclaim. The court had previously found genuine factual disputes about whether Siegel’s conduct showed the disloyalty or unfaithfulness required under New York law. Whether the conduct met that standard was a factual question for trial, and CBRE’s continued disagreement with the court’s assessment did not establish clear error or manifest injustice.

Ruling on Interlocutory Appeal

The court separately denied CBRE’s request to certify the earlier order for an interlocutory appeal under 28 U.S.C. § 1292(b). Certification requires a controlling question of law, a substantial ground for difference of opinion, and a showing that an immediate appeal may materially advance the end of the litigation.

The court found that CBRE’s proposed faithless-servant question did not satisfy any of the three requirements. First, reversal would not terminate or significantly affect the litigation because other issues would remain for trial, and the proposed issue was a mixed question of law and fact rather than a purely legal question. Second, CBRE identified no conflicting authority or issue of first impression creating a substantial ground for disagreement. Third, an interlocutory appeal would delay rather than advance the litigation because other triable issues remained and the case was ready for trial after the court decided these motions.

Disposition

The court denied the parties’ motions for reconsideration in full and denied CBRE’s motion to certify the earlier order for interlocutory review by the Second Circuit. The parties were ordered to file a joint pretrial order no later than 30 days after the March 8, 2022 order. The clerk was directed to terminate the motions at ECF Nos. 216 and 219.