| Trump on the Ocean, LLC v State of New York |
| 2010 NY Slip Op 09049 [79 AD3d 1325] |
| December 9, 2010 |
| Appellate Division, Third Department |
| Trump on the Ocean, LLC, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of counsel), forrespondent.
Rose, J.P. Appeals (1) from an order of the Court of Claims (Collins, J.), entered August 4, 2009,which granted defendant's motion to dismiss the claim, and (2) from an order of said court, enteredApril 15, 2010, which denied claimant's motion for, among other things, reconsideration.
Claimant, having successfully bid for the opportunity to construct and operate a restaurant andcatering facility on the boardwalk at Jones Beach State Park, entered into a lease with the Office ofParks, Recreation and Historic Preservation (hereinafter OPRHP). Approximately one year after theexecution of the lease, OPRHP determined that claimant's design for the basement did not comply withthe Uniform Fire Prevention and Building Code (hereinafter the Code) and required a variance from theDepartment of State (hereinafter DOS). After a hearing by a DOS regional board of review, claimant'sapplication was ultimately denied. Thereafter, claimant commenced this action alleging that defendantbreached both the lease itself and the covenant of good faith and fair dealing implied in the lease byinterfering with claimant's ability to perform it. Claimant also commenced a hybrid CPLR article 78proceeding in Nassau County challenging the regional board's denial of the variance.[FN*]When defendant moved to [*2]dismiss the claim in this action, theCourt of Claims granted the motion based on the failure to state a claim and denied claimant'ssubsequent motion to reconsider. Claimant appeals from both orders, and we affirm.
Arguing breach of the lease, claimant alleges that OPRHP unreasonably delayed its performance ofits obligations under the lease by failing to issue a construction permit and then by failing to adequatelyassist claimant's efforts to obtain the variance. In determining a motion to dismiss pursuant to CPLR3211 (a) (7), the claim is liberally construed, claimant's allegations are assumed to be true and claimantis afforded every favorable inference (seeEBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Bordeleau v State of New York, 74 AD3d1688, 1688 [2010]; IMSEngrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [2008], lvdenied 11 NY3d 706 [2008]). Here, while it is true that OPRHP is able to issue a constructionpermit (see 19 NYCRR 1204.3 [e]), the applicable regulations do not allow OPRHP to issue apermit for a design that is not in conformance with the Code (see 19 NYCRR 1204.3 [d];1204.7 [c]). Any variance from the Code must be obtained in accordance with the regulationspromulgated by DOS (see Executive Law § 381 [f]; 19 NYCRR part 1205; BuildingCode of NY State § 107.3 [2007]). Significantly, claimant does not contend that its design wasin conformance with the Code. Thus, it cannot complain that a variance was required. Nor can itcomplain that OPRHP failed to obtain the variance on its behalf, as claimant concedes that it had soleresponsibility for construction, including obtaining any and all approvals required (see e.g. Rooney v Slomowitz, 11 AD3d864, 866-867 [2004]). To the extent that claimant contends that OPRHP could have certified analternative design, it failed to allege that there was any such requirement that OPRHP do so in the lease.In sum, we agree with the Court of Claims that the breach of contract cause of action fails as a matterof law in the absence of any showing by claimant that a specific provision of the lease was allegedlybreached (see Woodhill Elec. v JeffreyBeamish, Inc., 73 AD3d 1421, 1422 [2010]; Kraus v Visa Intl. Serv. Assn., 304AD2d 408 [2003]). The cause of action for breach of the implied covenant of good faith and fairdealing must also fail because the implied obligation is only "in aid and furtherance of other terms of theagreement of the parties" (Murphy v American Home Prods. Corp., 58 NY2d 293, 304[1983]; see Dalton v Educational Testing Serv., 87 NY2d 384, 398 [1995]), and claimant hasnot alleged any applicable term of the lease to support it.
Turning to the denial of the motion to reconsider, claimant properly limits its argument to thatportion of the motion requesting leave to renew and to amend the claim (see N.A.S. Partnership vKligerman, 271 AD2d 922, 922 [2000]). Leave to renew must be based upon newly discoveredevidence that existed at the time of the prior motion but was unknown to claimant at that time, andclaimant must provide reasonable justification for not providing it earlier (see CPLR 2221 [e][2]; Tibbits v Verizon N.Y., Inc., 40AD3d 1300, 1302-1303 [2007]; Wahl v Grippen, 305 AD2d 707, 707 [2003]). As forthe request to amend the claim, leave to amend a pleading is generally freely given (see CPLR3025 [b]). As is relevant here, however, denial is appropriate if the moving party fails to make someevidentiary showing that the proposed amendment has merit (see Duquette v Oliva, 75 AD3d 727, 727-728 [2010]; Shelton v [*3]New York State Liq. Auth., 61 AD3d 1145, 1149 [2009]).
Both the request to renew and to amend were based on a proffer of the previously unprovidedlease, allegations that defendant was attempting to either abandon the lease or declare claimant indefault, and a decision of Supreme Court, Nassau County (Warshawsky, J.) that granted claimant'smotion for a preliminary injunction in a separate declaratory judgment action commenced by claimantagainst OPRHP. No reasonable justification, however, has been offered by claimant for its failure toprovide the lease in opposition to the initial motion. In any event, the specific lease provision relied onby claimant—that OPRHP would not unreasonably withhold approvals—cannot be readto impose a duty on defendant either to grant a construction permit for a design not in conformance withthe Code or to grant a requested variance for the project. Nor can we agree with claimant's contentionthat Supreme Court's decision granting preliminary relief qualifies as law of the case or as anadjudication on the merits (see Town ofConcord v Duwe, 4 NY3d 870, 875 [2005]; Papa Gino's of Am. v Plaza at LathamAssoc., 135 AD2d 74, 77 [1988]). Further, neither that decision nor the facts surrounding thedispute over rent and the continued need for a capital improvement bond will serve to cure thedeficiencies in the original pleading. We conclude, therefore, that the Court of Claims did not abuse itsdiscretion in denying the motion to renew (seeState of New York v Williams, 73 AD3d 1401, 1404 [2010], lv denied 15 NY3d709 [2010]; Kahn v Levy, 52 AD3d928, 929-930 [2008]) or the motion to amend (see Cowsert v Macy's E., Inc., 74 AD3d 1444, 1445 [2010]; Curtinv Community Health Plan, 276 AD2d 884, 886 [2000]). We have considered claimant's remainingcontentions and find them to be similarly unavailing.
Lahtinen, Stein, McCarthy and Garry, JJ., concur. Ordered that the orders are affirmed, withoutcosts.
Footnote *: Supreme Court, Nassau County(Warshawsky, J.) set aside the regional board's determination as arbitrary and capricious and notsupported by the evidence. The Second Department affirmed the judgment and remitted the matter tothe board to grant the requested variance subject to any conditions it deems appropriate (Matter of Trump on the Ocean, LLC vCortes-Vasquez, 76 AD3d 1080, 1087 [2010]).