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Re: Why the Manhattan Club Lawsuit was dismissed (by Irene S.):
These were the problems with the suit according to a lawyer and a real estate person on the listserv:
From the lawyer
"In the Blau case, the actual decision was based on a very limited specific factor -- that the main "factual allegation" upon which the lower court based its decision to uphold the case was stated only in a memorandum (a brief) -- and NOT in the complaint or an affidavit. When a fact is stated in a memo -- it has no effect. A fact must be stated in the complaint or a sworn affidavit for it to have legal existence.
Blau filed a complaint. in it were factual allegations outlining what he believed to be the issues against the Manhattan club. The Manhattan club attorneys filed a motion to dismiss that complaint and they would file legal papers including affidavits which are sworn factual allegations. And they will also file legal memorandum which are pure argument and may restate facts for the benefit of Judges but are not sources of sworn factual information. In other words, facts stated in the memo, which are not supported by the affidavits or the complaint, are not counted. this is what happened here. When Blau responded to the motion to dismiss, in his memo he stated facts some of which were not supported by the complaint or additional sworn affidavits. One of those facts was the main reason the lower court denied the motion to dismiss. The appellate court, seeing that, said we cannot base our decision on facts which are only produced within the memo.
With that being said, the court also chose too discuss the lack of detail and specificity of the plaintiffs claims in general. But, that's not what the case turned upon.
The Manhattan Club (and Eichner) have very good lawyers.
Every time there is one of these, we should learn the lesson and not make that same mistake next time."
From the Real Estate person "Although court holds that the case was not pled correctly, they also noted that the prospectus discloses that a portion of the units will be rented...so not fraud to rent 96% is the inference. Regards,