| Sun Gold, Corp. v Stillman |
| 2012 NY Slip Op 03940 [95 AD3d 668] |
| May 22, 2012 |
| Appellate Division, First Department |
| Sun Gold, Corp., Appellant, v Moon Stillman et al.,Defendants, and Mark B. Stillman et al., Respondents. |
—[*1] Jordan A. Wolff, Hastings-on-Hudson, for Mark B. Stillman, respondent. Rizpah A. Morrow, New York, for R.A. 35 West 43 Enterprises, Inc., respondent.
Orders, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 1, 2010,which, insofar as appealed from, granted the motions of defendants Mark B. Stillman and RA 35West 43 Enterprises, Inc. (landlord) for summary judgment dismissing the complaint as againstthem and all cross claims as against Stillman, unanimously affirmed, with costs.
The court properly awarded summary judgment dismissing plaintiff's causes of action forbreach of contract, trespass, wrongful eviction, and tortious interference with contract. Theclaims were all premised upon plaintiff's assertion that defendants engaged in a scheme todeprive it of an interest in leased premises by inducing the landlord to enter into new leases withthird parties for the same premises and term as provided for in plaintiff's lease. However, theundisputed evidence shows that prior to the alleged misconduct, plaintiff's lease was renderedvoid by its illegal use of the premises. The leased premises were equipped and advertised for theprovision of massage services by unlicensed masseuses, constituting a public nuisance andviolating applicable statutory, administrative code and zoning provisions (seeAdministrative Code of City of NY § 7-703 [f], [k]; NY City Zoning Resolution §12-10; Education Law §§ 7802, 6512, 6513). The use of the premises also breachedthe terms of plaintiff's lease requiring compliance with all relevant laws and regulations, and wasa non-complaint use under the premises' certificate of occupancy.
Accordingly, the court properly dismissed plaintiff's cause for breach of contract against thelandlord, as plaintiff cannot establish proper performance under the lease (see Hart v CityTheatres Co., 215 NY 322 [1915]). The claims against the landlord alleging wrongfuleviction and trespass were also properly dismissed since plaintiff's illegal use of the premisesvoided the lease and authorized the landlord to reenter (Real Property Law § 231 [1]).Plaintiff's claim against Stillman alleging tortious interference with contract is also not viablebecause plaintiff [*2]cannot show that "but for" Stillman'sconduct, the lease would not have been breached (see Lana & Samer v Goldfine, 7 AD3d 300 [2004]). Moreover, theclaims for wrongful eviction and trespass against Stillman were properly dismissed because thelease was rendered unenforceable by plaintiff's violation of its terms and illegal use of thepremises, vitiating plaintiff's leasehold interest prior to Stillman's alleged malfeasance (seeReal Property Law § 231 [1]).
Dismissal of plaintiff's causes of action for conversion of its leasehold and future businessinterests was also appropriate. The conversion of intangible property is not actionable (seeSporn v MCA Records, 58 NY2d 482, 489 [1983]). Moreover, plaintiff failed to establishthat the landlord and Stillman, as opposed to other named defendants, "exercised unauthorizeddominion over plaintiff's assets or equipment to the exclusion of the plaintiff's rights" (MBFClearing Corp. v Shine, 212 AD2d 478, 479 [1995]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Friedman, Catterson, Richter and Manzanet-Daniels, JJ.[Prior Case History: 28 Misc 3d 1213(A), 2010 NY Slip Op 51310(U).]