| White v Ivy |
| 2009 NY Slip Op 04331 [63 AD3d 1236] |
| June 4, 2009 |
| Appellate Division, Third Department |
| Lawrence White, Respondent, v Marilee G. Ivy, Also Known asTerry G. Ivy, Appellant. |
—[*1] Law Office of Christopher N. Luhn, P.C., Ballston Spa (Christopher N. Luhn of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Williams, J.), entered March 7, 2008 inSaratoga County, which denied defendant's motion for summary judgment dismissing theamended complaint.
The parties entered into a lease agreement for plaintiff to rent a portion of defendant'sbuilding to be used as a fine art gallery. Because the premises were in poor condition, the leasecontained provisions for the parties to perform renovations and apportion the costs andresponsibilities for those renovations. Disagreements arose, ending with plaintiff vacating thepremises. In his amended complaint in this action, plaintiff asserted causes of action for fraud,constructive eviction, tortious interference "with a business," unjust enrichment, quantum meruitand prima facie tort. Supreme Court denied defendant's motion for summary judgmentdismissing the amended complaint, prompting defendant's appeal.
Supreme Court should have granted defendant's motion as to plaintiff's fraud cause of action.That cause of action is not precluded by the lease's merger clause, as plaintiff alleges he wasfraudulently induced to sign the lease based upon defendant's representations (see Gizzi vHall, 300 AD2d 879, 881 [2002]). The parties dispute whether defendant represented thatthe building was structurally sound or that she possessed an engineer's report verifying thestructural [*2]soundness of the building, which defendant nowaffirms she did not have. Even accepting this factual dispute regarding whether defendant mademisrepresentations that she knew were false, plaintiff has failed to establish a question of fact onthe element of justifiable reliance (seeTanzman v La Pietra, 8 AD3d 706, 707 [2004]). Pictures in the record reveal thebuilding's general state of disrepair. While it is unclear whether the building's alleged structuralproblems were definitely ascertainable from an ordinary visual inspection, plaintiff contends thathe requested the engineer's report from defendant several times. Plaintiff signed the lease andundertook major renovations, despite defendant's failure to produce the report. His failure todemand receipt of the engineer's report prior to taking these steps, when he was apparentlyconcerned about the building's structural soundness, defeats the element of his justifiablereliance on defendant's alleged misrepresentations (see id. at 708). Additionally,considering the building's observable state of disrepair, plaintiff's concern not only about thestructural soundness but also about defendant's failure to supply the requested report, andplaintiff's access to the building and time within which to have his own expert conduct aninspection, plaintiff's failure to protect his interests by conducting such an inspection furtherdefeats his justifiable reliance on defendant's alleged statements (see Peach Parking Corp. v 346 W. 40th St.,LLC, 42 AD3d 82, 87 [2007]; Davidson Metals Corp. v Marlo Dev. Co., 238AD2d 463, 464 [1997]). Thus, the court should have granted defendant' motion for summaryjudgment on the fraud cause of action.
Summary judgment is not appropriate on the constructive eviction cause of action. The codeenforcement officer determined that the building could not be occupied until it was inspected forstructural integrity, preventing plaintiff from further operating his business at that location.There are questions of fact concerning whether plaintiff was responsible for or encouraged thismunicipal determination. The lease language is also ambiguous as to whether plaintiff wasresponsible for obtaining a certificate of occupancy or whether he was only required to abide byany terms of such a certificate once one was issued, regardless of who obtained the certificate.Thus, there were factual issues concerning whether defendant deprived plaintiff of "thebeneficial use and enjoyment of the premises" (Barash v Pennsylvania Term. Real EstateCorp., 26 NY2d 77, 83 [1970]).
Supreme Court should have dismissed plaintiff's cause of action for tortious interferencewith business relations. While New York recognizes a causes of action for tortious interferencewith business relations or contractual relations, the party asserting such a claim must allege aparticular business relationship or contract with a third party that was affected by the offendingparty's actions (see Carvel Corp. vNoonan, 3 NY3d 182, 189-190 [2004]; Williams Oil Co. v Randy Luce E-Z MartOne, 302 AD2d 736, 738 [2003]). Here, plaintiff made only general allegations that hisbusiness was shut down, without reference to any particular business relationship or contract thatwas impaired by defendant's alleged assertions concerning the building. Hence, defendant wasentitled to dismissal of that cause of action (see Pacheco v United Med. Assoc., 305AD2d 711, 713 [2003]; Korn v Princz, 226 AD2d 278, 278-279 [1996]).
Claims of unjust enrichment and quantum meruit are precluded if a valid and enforceablecontract governs the improvements made to the building (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d132, 142 [2009]; Goldman vMetropolitan Life Ins. Co., 5 NY3d 561, 572 [2005]). The lease contains provisionsaddressing repairs and maintenance, alterations and improvements, capital repairs and a scheduleof specific work to be performed. Because the lease governs repairs and improvements to thebuilding, defendant was entitled to [*3]summary judgmentdismissing the unjust enrichment and quantum meruit causes of action.[FN*]
The prima facie tort cause of action also should have been dismissed. Such a cause of actioncan only be successful if the defendant's sole motive is malevolence (see Morrison v Woolley, 45 AD3d953, 954 [2007]). Plaintiff's own allegations assert that defendant made false statements tohim to procure free building improvements and profit for herself. As malevolence was notdefendant's sole motive, defendant was entitled to dismissal of that cause of action.
Cardona, P.J., Peters, Lahtinen and Garry, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as denied defendant's motion for summaryjudgment dismissing plaintiff's causes of action for fraud, tortious interference with businessrelations, unjust enrichment, quantum meruit and prima facie tort; motion granted to that extentand said causes of action dismissed; and, as so modified, affirmed.
Footnote *: Although the original complaintcontained causes of action relating to breach of contract, those causes of action were notincluded in the amended complaint.