| Leonard v Gateway II, LLC |
| 2009 NY Slip Op 08866 [68 AD3d 408] |
| December 1, 2009 |
| Appellate Division, First Department |
| Laverne M. Leonard, Appellant, v Gateway II, LLC, et al.,Respondents, et al., Defendant. |
—[*1] Stein Farkas & Schwartz LLP, New York (Esther E. Schwartz of counsel), forrespondents.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered December 17, 2008,which granted the motion by the Gaetano defendants, Gateway Condominium and ManhattanProperty Managers Realty to dismiss the complaint against them, unanimously affirmed, withoutcosts.
The court properly dismissed the breach of contract claims against all defendants exceptGateway II, since plaintiff was not in privity with any of the other defendants (see generallyResidential Bd. of Mgrs. of Zeckendorf Towers v Union Sq.-14th St. Assoc., 190 AD2d 636,637 [1993]). The purchase agreements were unequivocally executed by Gaetano solely on behalfof Gateway II, and plaintiff points to no other contracts involving any other defendant. Plaintiff'sassertion that schedules A and B in the purchase agreements represent contracts with defendantsGaetano & Associates and Gateway Condominium, respectively, has no merit. Schedule A ismerely a set of architectural drawings prepared by Gaetano & Associates. It is not a contract ofany kind. Schedule B is an unsigned sample of a contract that the seller in the purchaseagreements (Gateway II) included as an example of one the buyer (plaintiff) might have toobtain. It does not bind Gateway Condominium in any way. Nor is plaintiff a third-partybeneficiary of these noncontracts. Even if these schedules could be considered contracts withGaetano & Associates and Gateway II (schedule A) and with Gateway Condominium (scheduleB), they would be insufficient to render plaintiff a third-party beneficiary thereunder (see Edge Mgt. Consulting, Inc. vBlank, 25 AD3d 364, 368-369 [2006], lv dismissed 7 NY3d 864 [2006]), andwould in no way obligate Gaetano & Associates and Gateway Condominium to performGateway II's obligations under the purchase agreements.
The court also properly dismissed the second cause of action for fraud against all defendants,as this is no more than a restatement of plaintiff's breach of contract claim, without alleging abreach of duty owed to plaintiff independent of the purchase agreements (seeClark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]).
Plaintiff's third cause of action for fraudulent inducement was also properly dismissed, as[*2]plaintiff cannot establish reasonable reliance on any of thealleged promises made to her, such as tax abatements and certain services, because the purchaseagreements expressly state that plaintiff did not rely on any promises not contained therein.While this provision would expressly allow for reliance on matters contained in the offeringplan, plaintiff has not pointed to any provision of the plan, or of any prior offering plan, whichmight have included the promises upon which she claims to have relied. She cannot claimreasonable reliance on provisions in the offering plan that she never saw and apparently neverasked to see (see UST Private Equity Invs. Fund v Salomon Smith Barney, 288 AD2d87, 88 [2001]; Rodas v Manitaras, 159 AD2d 341, 342-343 [1990]; see also ValassisCommunications v Weimer, 304 AD2d 448, 449 [2003], appeal dismissed 2 NY3d794 [2004]).
Plaintiff's fourth cause of action for tortious interference with prospective contracts wasproperly dismissed, as plaintiff has failed to allege that such interference was effected byunlawful means or egregious conduct, such as conduct engaged in for the sole purpose ofharming plaintiff (see Carvel Corp. vNoonan, 3 NY3d 182 [2004]).
Plaintiff's fifth cause of action, except to the extent the court permitted a portion of it toproceed as a breach of contract claim against Gateway II, asserts claims relating to alleged harmto the Condominium as a whole, not plaintiff individually. As such, plaintiff lacks standing tomake these claims (see Abrams v Donati, 66 NY2d 951 [1985]; Di Fabio v Omnipoint Communications,Inc., 66 AD3d 635, 637 [2009]).
Plaintiff's assertion that discovery is necessary in order to oppose defendants' motion isbased on nothing more than unsubstantiated hope of discovering something relevant to herclaims, and is an insufficient reason to deny the motion (see Kennerly v Campbell Chain Co.,Campbell Chain Div. McGraw-Edison Co., 133 AD2d 669, 670 [1987]). Nor havedefendants waived their right to dismissal pursuant to CPLR 3211 (e), as the only documents onwhich defendants rely are the purchase agreements, which are the foundation of plaintiff's ownclaims. In any event, defendants clearly asserted as affirmative defenses that plaintiff lackedprivity with all defendants but Gateway II, and that the complaint fails to state a cause of action,the very grounds upon which dismissal is premised in this case. Concur—Tom, J.P.,Sweeny, Moskowitz, Acosta and Abdus-Salaam, JJ. [Prior Case History: 2008 NY Slip Op33376(U).]