Opinion

Commercial Tenant Servs., Inc. v. Building Serv. 32BJ Health Fund

  • 2026 NY Slip Op 30652(U)
Court
New York Supreme Court, New York County
Filed
Feb 20, 2026
Status
Unpublished
Author
Judy H. Kim
Cited by
0 cases
Authority
More cited than 39.4%

The opinion

Commercial Tenant Servs., Inc. v Building Serv. 32BJ

Health Fund

2026 NY Slip Op 30652(U)

February 20, 2026

Supreme Court, New York County

Docket Number: Index No. 653371/2019

Judge: Judy H. Kim

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.6533712019.NEW_YORK.003.LBLX000_TO.html[03/06/2026 3:45:35 PM]

FILED: NEW YORK COUNTY CLERK 02/20/2026 02:09 PM INDEX NO. 653371/2019

NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 02/20/2026

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. JUDY H. KIM PART 04

Justice

---------------------------------------------------------------------------------X INDEX NO. 653371/2019

COMMERCIAL TENANT SERVICES, INC.,

MOTION DATE 12/01/2025

Plaintiff,

MOTION SEQ. NO. 006

-v-

BUILDING SERVICE 32BJ HEALTH FUND, DECISION + ORDER ON

MOTION

Defendant.

---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 006) 225, 226, 227, 228,

229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249,

250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262

were read on this motion to/for PRECLUDE .

Upon the foregoing documents, defendant’s motions in limine are denied.

In advance of the trial of this matter, defendant moves to preclude plaintiff from: (1)

“proving damages through the testimony of Bart McDade”; (2) offering evidence related to

plaintiff’s damages “on any claim outside of the events of the conversion to a condominium”; (3)

offering evidence of damages beyond the amount sought in plaintiff’s Amended Complaint; and

(5) submitting the deposition testimony of Adam Ashcroft into evidence on its case in chief.

Defendant also seeks declarations from this Court that: (1) “all ambiguities in the [parties’]

Agreement are to be read in a manner most favorable to” defendant; and (2) paragraph 9 of the

parties’ agreement either does not contemplate compound interest or is ambiguous on this issue or

is invalid as usurious.

653371/2019 COMMERCIAL TENANT SERVICES, vs. SEIU, LOCAL 32BJ Page 1 of 4

Motion No. 006

1 of 4

[* 1]

FILED: NEW YORK COUNTY CLERK 02/20/2026 02:09 PM INDEX NO. 653371/2019

NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 02/20/2026

Defendant’s motions are addressed as follows:

Defendant’s motion to preclude the testimony of Bart McDade, the Vice President and

Director of Operations of defendant’s managing agent, Newmark Grubb Knight Frank, is denied.

The cases cited by defendant for the proposition that McDade, as defendant’s authorized agent,

does not have authority to testify—Wen Kroy Realty Co. v Public National Bank & Trust Company

of New York, 260 NY 84, 89 (1932) and Bay Shore Union Free School District, 2024 NY Misc

LEXIS 52089 (Sup Ct, Suffolk County, 2024)—are inapposite. Defendant argues that opinion

evidence as to liability cannot be offered by an individual, like McDade, who is “involved” in the

lawsuit, but defendant’s liability has already been established.

Defendant’s motion to preclude plaintiff from offering evidence of damages outside of

amounts defendant saved in purchasing the condominium it had been leasing is denied. Plaintiff

misconstrues the Appellate Division, First Department’s decision, which noted that “plaintiff is

entitled to a commission based on any savings or recoupments realized by defendant during the

relevant period that constitute a “Refund[ ]” within the scope of the 2013 agreement's definition

of that term …” and remanded this matter “for further proceedings to determine the amount of the

recovery to which plaintiff is entitled” (Commercial Tenant Services, Inc. v Bldg. Serv. 32BJ

Health Fund, 217 AD3d 446, 448-449 [1st Dept 2023]). The First Department’s statements that

the commissions to which plaintiff is entitled included “any savings defendant realized as a result

of its purchase of the condominium during the period specified in paragraph 4 of the 2013

agreement” (Commercial Tenant Services, Inc. v Bldg. Serv. 32BJ Health Fund, 217 AD3d 446,

449 [1st Dept 2023]) but that these amounts could not be calculated on the record before it, do not

support defendant’s argument that the remand was confined to the calculation of defendant’s

savings from its purchase of the condominium.

653371/2019 COMMERCIAL TENANT SERVICES, vs. SEIU, LOCAL 32BJ Page 2 of 4

Motion No. 006

2 of 4

[* 2]

FILED: NEW YORK COUNTY CLERK 02/20/2026 02:09 PM INDEX NO. 653371/2019

NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 02/20/2026

Defendant’s motion to preclude plaintiff from submitting the deposition testimony of

Adam Ashcroft into evidence on its case-in-chief is denied as moot. In opposition, plaintiff

represents that it will only use deposition testimony for cross-examination and rebuttal should the

need arise.

The remainder of defendant’s motions are not proper subjects of a motion in limine, “which

is simply a request for an advance ruling on matters of evidence” (Passionist Communications,

Inc. v Arnold, 23 Misc 3d 1130(A) [Sup Ct, Westchester County 2009]). The Court nevertheless

addresses these requests in the interest of judicial economy. Defendant’s motion to limit plaintiff’s

recovery to, at most, the amount demanded in its amended complaint is denied. As plaintiff now

seeks a greater sum based upon discovery defendant produced after the First Department’s remand,

no prejudice to defendant results from plaintiff conforming its pleadings to the proof at trial (CPLR

3025). Unlike the cases cited by defendant, plaintiff has not sought to assert a new cause of action

at this late date (see Ofman v Bluestone, 227 AD3d 822 [2d Dept 2024]; Glaubach v Slifkin, 198

AD3d 623 [2d Dept 2021]).

Defendant’s motion for a declaration that “all ambiguities in the Agreement are to be read

in a manner most favorable to the Fund” is denied. There are no contractual ambiguities to be

resolved at this juncture; the question to be decided at trial are the total of the “savings or

recoupments realized by defendant during the relevant period that constitute a “Refund [ ]” within

the scope of the 2013 agreement's definition of that term” (Commercial Tenant Services, Inc. v

Bldg. Serv. 32BJ Health Fund, 217 AD3d 446, 448 [1st Dept 2023]).

Finally, defendant’s motion for a declaration that paragraph 9 of the Agreement does not

contemplate compound interest is denied. Defendant’s interpretation of this provision is belied by

653371/2019 COMMERCIAL TENANT SERVICES, vs. SEIU, LOCAL 32BJ Page 3 of 4

Motion No. 006

3 of 4

[* 3]

FILED: NEW YORK COUNTY CLERK 02/20/2026 02:09 PM INDEX NO. 653371/2019

NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 02/20/2026

the plain language of that paragraph (see Verizon New York Inc. v. Choice Communications of

N.Y., 2010 NY Slip Op 33156(U) [Sup Ct, NY County 2010]).

Accordingly, it is

ORDERED that defendant’s motion to preclude is denied in its entirety.

This constitutes the decision and order of the Court.

2/20/2026

~.;ti~

DATE HON. JUDY H. KIM, J.S.C.

□ ~ ~

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

653371/2019 COMMERCIAL TENANT SERVICES, vs. SEIU, LOCAL 32BJ Page 4 of 4

Motion No. 006

4 of 4

[* 4]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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