| Bostany v Trump Org. LLC |
| 2010 NY Slip Op 04029 [73 AD3d 479] |
| May 11, 2010 |
| Appellate Division, First Department |
| John P. Bostany, Respondent, v Trump Organization LLC,Appellants. |
—[*1] Profeta & Eisenstein, New York (Fred R. Profeta, Jr. of counsel), for respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 28, 2009,which, inter alia, denied defendants' motion to dismiss the entire complaint as against defendantTrump Organization and all but count XIII of the complaint as against defendant 40 Wall Street,unanimously modified, on the law, counts I, II and IV dismissed as against both defendants, andotherwise affirmed, with costs.
"[W]here, as here, the circumstances raise the possibility of a principal-agent relationship butno written authority of the agent has been proven, questions of agency and of its nature andscope . . . are questions of fact" (see Fogel v Hertz Intl., 141 AD2d 375,376 [1988] [internal quotation marks and citations omitted]). The record shows, inter alia, thatthe premises was called "The Trump Building," that plaintiff was induced to sign the lease by anexecutive vice-president of defendant Trump Organization, that the lease was signed by DonaldTrump (albeit on behalf of 40 Wall), at defendants' executive offices in Trump Tower on 5thAvenue, that employees of defendant Trump Organization dealt directly with plaintiff andcontractors regarding issues affecting the premises, such as repairs and maintenance, and that theexecutive vice-president with whom plaintiff dealt authorized dispossess proceedings on TrumpOrganization letterhead. "If it is found that there exists an apparent or ostensible agency"between Trump Organization and 40 Wall, "this may serve as a basis for vicarious liability" onthe part of Trump Organization (id. at 376-377, citing Hill v St. Clare's Hosp., 67NY2d 72, 79 [1986]). It certainly may be found, on this record, that the acts of the putativeprincipal, Trump Organization, constitute a "holding out" to plaintiff and the public which wouldestop Trump Organization from disclaiming responsibility for the agent's torts (see Fogel vHertz Intl., 141 AD2d 375 [1988], supra). Thus, dismissal of all claims againstTrump, as defendant Trump advocates on appeal, is not warranted. However, since Trump'sliability is predicated on a theory of apparent or ostensible agency, it is entitled to the benefit ofthe settlement agreements entered into by plaintiff and defendant 40 Wall, to the extent suchagreements serve as a bar to plaintiff's claims.
Since plaintiff alleges he was fraudulently induced to sign the October 6, 2004 lease basedon conduct occurring prior to July 5, 2005, the cause of action for fraud (count I) against bothdefendants should have been dismissed as barred by the July 5, 2005 settlement agreement.[*2]
The third (unjust enrichment), fifth (breach of lease),sixth (restitution), seventh (partial constructive eviction), eighth (partial actual eviction), ninth(breach of covenant of quiet enjoyment), tenth (loss of business), eleventh (negligence for mold),twelfth (indemnification) and fourteenth (declaratory judgment) causes of action against bothdefendants are barred under the settlement agreements to the extent they seek damages relatingto incidents occurring prior to July 5, 2005, or relating to plaintiff's purported inability to use anyportion of the subject premises prior to the settlement agreement of April 2, 2007. The claims arenot barred to the extent plaintiff seeks damages broader than a mere loss of space (such as fordamages to computers, important papers, etc.) occurring after July 5, 2005, or for damagesrelating to plaintiff's inability to use any portion of the subject premises after April 2, 2007.
Defendants established their entitlement to dismissal of the claim for negligentmisrepresentation (count IV) since defendants were nonprofessionals who negotiated an arm'slength commercial contract with plaintiff and had no special relationship with him (Parisi v Metroflag Polo, LLC, 51AD3d 424 [2008]). Defendants also established entitlement to summary dismissal of theclaim for breach of implied duty of good faith and fair dealing (count II) on the ground ofredundancy. Such a claim cannot be maintained where, as here, the alleged breach is"intrinsically tied to the damages allegedly resulting from a breach of the contract" (Canstar vJones Constr. Co., 212 AD2d 452, 453 [1995]). Concur—Mazzarelli, J.P., Sweeny,Moskowitz, Manzanet-Daniels and RomÁn, JJ.