Gary Barnett Never Gives Up, Takes Rushmore Refunds to Court for Fourth Time

20081105 barnett 250x375 Gary Barnett Never Gives Up, Takes Rushmore Refunds to Court for Fourth Time

Never give up, never surrender.

With all the attention focused on Gary Barnett’s swiftly rising One57, his greatest success to date may be the Rushmore. The building has attracted a parade of high-profile buyers, and he almost prevailed in his years-long lawsuit against now-governor, then-attorney general Andrew Cuomo, who wanted Mr. Barnett to refund buyers deposits over what the developer said was a typo. The case was decided against the developer last year.

Well, Mr. Barnett is back in court, fighting yet again what Crain’s calls the most expensive condo refund ever, which may help explain Extell’s determination to prevail.

The Real Deal has a good explanation of Extell and its partner Carlyle’s case:

Singh ruled that the AG was “rational under the circumstances” not to consider extrinsic evidence in the case. In court filings and oral arguments, lawyers for Extell have repeatedly stated that the buyers never really cared about the deadline for the first closing, and that they used the date as a technical error to get out of the contracts because of the real estate crash.

The developers also argue that Singh erred in ruling that the court cannot consider evidence that was not placed before the AG during the hearings, but must decide based on what evidence was placed in front of the AG during the hearings. As part of their appeal, the developers sought the ability to collect documents and other evidence from the buyers as to whether they really cared about the deadline.

Finally, the developers argue that they should be allowed “reformation,” in which the dates would essentially be rewritten based on what they say was their true intent, a September 2009 deadline.

The 40 spurned buyers are arguing this is just an attrition tactic, meant to wear down the deposit-less ex-buyers.

mchaban [at] observer.com | @MC_NYC