| Kleinerman v 245 E. 87 Tenants Corp. |
| 2010 NY Slip Op 04703 [74 AD3d 448] |
| June 3, 2010 |
| Appellate Division, First Department |
| Vivian Kleinerman et al., Respondents, v 245 East 87Tenants Corp. et al., Appellants. |
—[*1] Vivian Kleinerman, respondent pro se. Gerald Kleinerman, respondent pro se.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 23,2008, which, to the extent appealed from as limited by the briefs, denied defendants' motion todismiss the third and eighth causes of action as against the Tenants Corp. (the co-op) and theentire complaint as against all other defendants, unanimously modified, on the law, the motiongranted to the extent of dismissing the second, third, and fourth causes of action as against theco-op and its seven board members, the seventh cause of action against defendants Orsid,Ginsberg and McKenzie, and the eighth cause of action as against all defendants, and otherwiseaffirmed, without costs.
The instant action by owners of shares in a cooperative apartment alleged, inter alia, breachof fiduciary duty, breach of the covenant of quiet enjoyment, breach of contract and fraud againstthe co-op, its assistant secretary (Ginsberg), and seven individual members of the board. Othercauses of action were alleged against the co-op's superintendent (McKenzie), the co-op'smanaging agent (Orsid), and Ginsberg in his capacity as an employee of that agent. Thecomplaint alleged that plaintiffs were directed to stop work on renovations to their apartment thatwere already approved by the co-op board and the New York City Buildings Department.Plaintiffs alleged the board's stop-work order, predicated supposedly on undertaking unapprovedalterations, constituted retaliation for plaintiffs' unwillingness to acquiesce to thesuperintendent's extortionate demands.
Plaintiffs sufficiently alleged a cause of action for breach of fiduciary duty against the co-op,board, its officer and individual board members, with assertions that indicated actual knowledgeof their superintendent's purported extortionate demands from plaintiffs, and substantiallyassisting those demands by issuing the stop-work order once plaintiffs discontinued payments tothe superintendent. Such claim sufficiently alleges the requisite independent tortious conduct onthe part of the co-op, its officers and individual board members to preclude dismissal of thebreach of fiduciary duty claim against them (Ackerman v 305 E. 40th Owners Corp., 189AD2d 665 [1993]).[*2]
Dismissal of the claims in the second (breach of covenantof quiet enjoyment) and fourth (breach of contract) causes of action as against the co-op's officerand seven board members is warranted because plaintiffs offer no opposition, and because thesedefendants were not parties to the proprietary lease in question. That being the case, SupremeCourt should also have dismissed the fraud claim (third cause of action) because it arises out ofthe facts and circumstances identical to the action for breach of contract (Spellman vColumbia Manicure Mfg. Co., 111 AD2d 320, 322-324 [1985]). And since we aredismissing the fraud claim, the seventh cause of action for aiding and abetting a fraud, againstdefendants Orsid, Ginsberg and McKenzie, should also be dismissed.
Dismissal of the eighth cause of action (prima facie tort) as against all defendants iswarranted because the allegations do not establish that defendants' purportedly tortious conductwas motivated by an otherwise lawful act performed with the intent to injure or with a"disinterested malevolence" (see Curiano v Suozzi, 63 NY2d 113, 117 [1984]). Plaintiffsthemselves maintained that defendants' superintendent had engaged in tortious conduct to extortmoney from them for purposes of financial gain.
The argument for dismissal of the sixth cause of action (aiding and abetting a breach offiduciary duty) is unavailing as the allegations against the management defendants adequatelyassert actual knowledge that they were substantially assisting the primary wrongdoer'smisconduct (i.e., including the superintendent's alleged extortion of money from plaintiffs) (see generally Bullmore v Ernst & YoungCayman Is., 45 AD3d 461, 463-464 [2007]).
We have considered defendants' remaining arguments and find them unavailing.Concur—Tom, J.P., Moskowitz, Renwick, DeGrasse and Manzanet-Daniels, JJ.