| International Plaza Assoc., L.P. v Lacher |
| 2009 NY Slip Op 04954 [63 AD3d 527] |
| June 16, 2009 |
| Appellate Division, First Department |
| International Plaza Associates, L.P.,Respondent, v Michael A. Lacher et al., Appellants and Third-PartyPlaintiffs-Appellants. David Nevins et al., Third-PartyDefendants-Respondents. |
—[*1] Itkowitz & Harwood, New York (Donald A. Harwood of counsel), for respondents.
Order, Supreme Court, New York County (Debra A. James, J.), entered April 18, 2008,which, to the extent appealed from as limited by the briefs, granted the CPLR 3211 motion ofplaintiff and third-party defendants David Nevins and Charles Steven Cohen (1) dismissing thesecond counterclaim alleging fraudulent inducement; (2) dismissing the claims for punitivedamages; and (3) dismissing the third-party claims against Nevins and Cohen, unanimouslyaffirmed, with costs.
The motion court properly determined that defendants' second counterclaim failed to allegefraud extraneous and collateral to the contract. The second counterclaim simply alleges thatplaintiff failed to fulfill its contractual obligations to provide cleaning services and make certainimprovements, and as such is merely a restatement of defendants' third and fourth counterclaimsfor breach of contract (see Briefstein v Rotondo Constr. Co., 8 AD2d 349, 351 [1959]).
The motion court properly dismissed the third-party claims alleging fraud based on therationale that defendants fail to allege reasonable reliance. As the motion court reasoned, theterms of the lease, including the no oral modification clause, preclude reasonable reliance on thealleged "misrepresentations," which are either at variance with the terms of the lease, or pertainto negotiations for a new lease which never came to fruition (see Aris Indus. v 1411Trizechahn-Swig, 294 AD2d 107 [2002]).
Defendants argue that through Nevins' acceptance of late rent payments and hisrepresentations that defendants would be permitted to cure any defaults, Nevins established a[*2]course of dealing upon which defendants had a right to rely.However, such reliance is negated by the lease, which expressly provides that the landlord'sfailure to insist upon strict performance of the lease terms "shall not be construed as a waiver orrelinquishment for the future of such term, covenant, condition, right or remedy," and that thelandlord's acceptance of rent with knowledge of a breach of any term "shall not be deemed awaiver of such breach."
The motion court properly dismissed the claims for punitive damages. " 'Punitive damagesare not recoverable for an ordinary breach of contract as their purpose is not to remedy privatewrongs but to vindicate public rights' " (Fulton v Allstate Ins. Co., 14 AD3d 380, 381 [2005], quotingRocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994]).
We have considered defendants' remaining contentions and find them unavailing.Concur—Tom, J.P., Friedman, Nardelli, Buckley and Abdus-Salaam, JJ.