| Morris v 702 E. Fifth St. HDFC |
| 2007 NY Slip Op 10488 [46 AD3d 478] |
| December 27, 2007 |
| Appellate Division, First Department |
| Bruce Morris, Appellant, v 702 East Fifth Street HDFC,Respondent. |
—[*1] James Brisco West, New York City, for respondent.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered January 18, 2007,which, to the extent appealed from, granted defendant's cross motion insofar as it sought todismiss the first and third causes of action in the supplemental complaint, unanimously reversed,on the law, without costs, that portion of the cross motion denied, and those causes of actionreinstated.
On a prior appeal in this action, we restored the tenant's complaint to the trial calendar basedon defendant landlord's failure to comply with the terms of a March 2000 settlement agreement(8 AD3d 27 [2004]). Plaintiff thereafter served a supplemental complaint with three causes ofaction. Contrary to the court's findings, the first cause of action, for breach of the lease arising outof defendant's refusal to sign governmental permits, is timely. As the original complaint gavenotice of this alleged failure to sign the appropriate forms, such notice must be deemed to havebeen interposed at the time of the original pleading (CPLR 203 [f]), and the cause should nothave been dismissed (see McHale vAnthony, 41 AD3d 265 [2007]).
On a motion to dismiss, the complaint is to be liberally construed and the alleged factsaccepted as true, affording the plaintiff every possible favorable inference (see Leon vMartinez, 84 NY2d 83, 87-88 [1994]). The third cause of action properly pleaded a breach ofthe settlement agreement, setting forth the existence of a valid contract, plaintiff's performance ofhis obligations thereunder, defendant's breach by its refusal to schedule a sound test, andresulting damages in the form of lost profits (see Furia v Furia, 116 AD2d 694 [1986]).
Defendant's arguments regarding the parties' contemplation of lost profits and plaintiff's[*2]ability to prove same are more appropriately addressed on amotion for summary judgment, and are thus premature at this juncture. Concur—Tom,J.P., Friedman, Nardelli and Catterson, JJ.