| Crown Assoc., Inc. v Zot, LLC |
| 2011 NY Slip Op 03020 [83 AD3d 765] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Crown Associates, Inc., Respondent, v Zot, LLC, et al.,Appellants. |
—[*1] Jaroslawicz & Jaros LLC, New York, N.Y. (David Tolchin of counsel), forrespondent.
In an action to recover damages for prima facie tort, trespass, breach of contract, negligence,deceptive business practices, tortious interference with contract, and violation of Judiciary Law§ 487, the defendants appeal from an order of the Supreme Court, Kings County(Vaughan, J.), dated June 16, 2010, which denied their motion to dismiss the causes of action torecover damages for breach of contract and negligence insofar as asserted against the defendantsUrban American Management, LLC, Philip Eisenberg, and City Investment Fund, and to dismissthe remaining causes of action in their entirety, pursuant to CPLR 3211 (a) (1), (5) and (7).
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the defendants' motion which was to dismiss the cause of action to recoverdamages for breach of contract insofar as asserted against the defendants Urban AmericanManagement, LLC, Philip Eisenberg, and City Investment Fund, and substituting therefor aprovision granting that branch of the motion, (2) by deleting the provision therefor denying thatbranch of the defendants' motion which was to dismiss the cause of action to recover damages fornegligence insofar as asserted against the defendants Philip Eisenberg and City Investment Fund,and substituting therefor a provision granting that branch of the motion, (3) by deleting theprovision thereof denying that branch of the defendants' motion which was to dismiss the causesof action to recover damages for tortious interference with contract and trespass insofar asasserted against the defendant City Investment Fund, and substituting therefor a provisiongranting that branch of the motion, and (4) by deleting the provision thereof denying that branchof the defendants' motion which was to dismiss the causes of action to recover damages fordeceptive business practices, prima facie tort, and violation of Judiciary Law § 487 in theirentirety, and substituting therefor a provision granting that branch of the motion; as so modified,the order is affirmed, without costs or disbursements.
In 2008 the plaintiff commenced this action against the defendants Zot, LLC (hereinafterZot), Urban American Management, LLC (hereinafter UAM), Philip Eisenberg, and CityInvestment Fund (hereinafter CIF). According to the amended complaint, dated March 9, 2009,Eisenberg is a shareholder and director of both Zot and UAM. The plaintiff had been acommercial tenant at 510 Empire Boulevard in Brooklyn since March 2004, having entered intoa lease with the prior owner of the premises. The plaintiff operated a restaurant in the space. Theprior owner sold [*2]the property to Zot on February 27, 2006,and Zot retained UAM to manage the premises. The amended complaint alleged, inter alia, that"[t]he defendants orchestrated a scheme to purchase the subject property with the intention ofharassing the existing tenants who paid low rents, thereby forcing them out of the building andenabling the defendants to profit by re-renting the spaces thus cleared to new tenants who wouldpay higher rents." Among other allegations, the amended complaint stated that the defendantsfailed to repair a leak in the restaurant's ceiling, which went from a drip to "cascading showers ofwater," eventually causing the ceiling to collapse. The restaurant was also allegedly "teemingwith rats and mice." The amended complaint also alleged that Eisenberg had some unspecifiedfinancial arrangement with CIF.
The amended complaint purportedly alleged causes of action to recover damages for primafacie tort, trespass, breach of contract, negligence, and deceptive business practices against all ofthe defendants. It further purportedly alleged causes of action to recover damages for tortiousinterference with contract against Eisenberg, UAM, and CIF, and the violation of Judiciary Law§ 487 against Eisenberg. The defendants moved to dismiss the amended complaintpursuant to CPLR 3211 (a) (1), (5) and (7). In an order dated June 16, 2010, the Supreme Courtdenied the defendants' motion in its entirety, without elaboration. The defendants appeal.
In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR3211 (a) (7), a court must "accept the facts as alleged in the complaint as true, accord [the]plaintiffs the benefit of every possible favorable inference, and determine only whether the factsas alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88[1994]).
The Supreme Court should have granted that branch of the defendants' motion which was todismiss the cause of action to recover damages for deceptive business practices (seeGeneral Business Law § 349) in its entirety, as the amended complaint failed to allege thatthe defendants were engaged in a "consumer-oriented" practice (Flax v Lincoln Natl. Life Ins. Co., 54AD3d 992, 994 [2008] [interior quotation marks omitted]). The Supreme Court furthershould have dismissed the cause of action to recover damages for prima facie tort in its entirety,since the complaint alleged that the defendants were motivated by profit, and " '[a] claim ofprima facie tort does not lie where the defendant's action has any motive other than a desire toinjure the plaintiff' " (Weaver v Putnam Hosp. Ctr., 142 AD2d 641, 641-642 [1988],quoting Global Casting Indus. v Daley-Hodkin Corp., 105 Misc 2d 517, 522 [1980]). TheSupreme Court also should have dismissed the cause of action to recover damages for theviolation of Judiciary Law § 487—which was directed solely atEisenberg—since the amended complaint failed to allege that Eisenberg was acting in hiscapacity as an attorney, and "the mere fact that a wrongdoer is an attorney is insufficient toimpose liability" (People v Canale, 240 AD2d 839, 841 [1997]; see also Oakes v Muka, 56 AD3d1057, 1058 [2008]).
The Supreme Court properly concluded that the amended complaint stated a valid cause ofaction alleging that Eisenberg, Zot, and UAM committed trespass by intentionally allowing waterto be diverted onto the plaintiff's premises (see Meadow Lane Equities Corp. v Hill, 63 AD3d 699, 700-701[2009]; Zimmerman v Carmack, 292 AD2d 601, 602 [2002]). However, the SupremeCourt should have granted that branch of the defendants' motion which was to dismiss this causeof action insofar as asserted against CIF, since the amended complaint failed to articulate therelationship between CIF and the other defendants, and failed to state that CIF had ever enteredonto the plaintiff's premises (seegenerally Kaplan v Incorporated Vil. of Lynbrook, 12 AD3d 410, 412 [2004]).
A claim of tortious interference with a contract requires proof of (1) the existence of a validcontract between a plaintiff and a person or entity not a party to the contract; (2) the defendant'sknowledge of that contract; (3) the defendant's intentional procuring of the breach; and (4)damages (see Foster v Churchill, 87 NY2d 744, 749- 750 [1996]; see alsoCommodari v Long Is. Univ., 295 AD2d 302 [2002]). The Supreme Court properlydetermined that the amended complaint stated a valid cause of action to recover damages fortortious interference with a contract against Eisenberg and UAM. But the Supreme Court shouldhave granted that branch of the defendants' motion which was to dismiss this cause of actioninsofar as asserted against CIF, since the amended complaint failed to articulate how CIFintentionally procured a breach of the contract between Zot and the plaintiff.
The Supreme Court also properly concluded that the amended complaint stated a [*3]valid cause of action to recover damages for negligence againstUAM (see generally Espinal v Melville Snow Contrs., 98 NY2d 136, 139 [2002]).Nonetheless, the Supreme Court should have granted those branches of the defendants' motionwhich were to dismiss this cause of action insofar as asserted against Eisenberg and CIF, as theamended complaint failed to allege that either of these two defendants owed a duty to theplaintiff (see generally Friedman vAnderson, 23 AD3d 163, 165 [2005]).
The Supreme Court should have granted those branches of the defendants' motion whichwere to dismiss the cause of action to recover damages for breach of contract insofar as assertedagainst Eisenberg, UAM, and CIF, since Zot was the only defendant in privity of contract withthe plaintiff (see generally M. Paladino, Inc. v Lucchese & Son Contr. Corp., 247 AD2d515 [1998]).
In view of the foregoing, we do not address the parties' remaining contentions. Rivera, J.P.,Chambers, Hall and Lott, JJ., concur.