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.
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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.
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Motion No. 006
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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.
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Motion No. 006
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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
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Motion No. 006
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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
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Motion No. 006
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