Offices of Jonathan E. Neuman, Fresh Meadows (Jonathan E.
Neuman of counsel), for appellants-respondents.
McLaughlin & Stern, LLP, New York (Chester R. Ostrowski
of counsel), for respondent-appellant.
Acosta, P.J., Sweeny, Webber, Kahn, Oing, JJ.
Supreme Court, New York County (Eileen Bransten, J.), entered
January 12, 2018, which granted defendant's motion to
dismiss the first cause of action for breach of the lease,
except for the portion related to plaintiffs' right of
quiet enjoyment of the property, and the second cause of
action for fraudulent inducement, both with prejudice, and
the third cause of action for prima facie tort without
prejudice, unanimously modified, on the law, to reinstate the
breach claim as set forth herein, reinstate the fraudulent
inducement claim as set forth herein, and to dismiss the
breach claim with respect to plaintiffs' right of quiet
enjoyment without prejudice, and otherwise affirmed, without
Monica Iken and the preschool that she owns, Ordinary Faces
LLC, brought this action against the landlord defendant
Bohemian Brethren Presbyterian Church, alleging breach of the
lease, fraudulent inducement for entering into the lease, and
prima facie tort.
the breach of lease claim, plaintiffs alleged that defendant
refused to address building code violations preventing them
from obtaining a Letter of No Objection and in turn running
the preschool, that defendant failed to install a proper fire
alarm system, and that defendant violated plaintiffs'
right of quiet enjoyment of the property.
respect to the building code violations, the complaint does
not specify whether repairs, as opposed to payment of a
penalty or filing paperwork, were required to cure. As such,
article 6 of the lease which states that defendant is not
responsible for making any repairs cannot be used to defeat a
motion to dismiss. Moreover, article 14 states that
plaintiffs were taking the leased premises "as-is."
However, article 18 explicitly states defendant would
"reasonably cooperate" with plaintiffs in obtaining
approvals from the NYC Department of Buildings. As this is a
motion to dismiss, plaintiffs are accorded the benefit of
every favorable inference, and the documentary evidence does
not conclusively demonstrate that defendant did not have an
obligation to cure the building code violations.
plaintiffs properly pled that defendant failed to take any
steps to install a proper fire alarm system in violation of
the rider to the lease, even though plaintiff Monica Iken was
able to secure a donated system.
respect to the right to quiet enjoyment of the property,
plaintiffs have not alleged that they were actually evicted
or that they abandoned the premises (Jackson v
Westminister House Owners Inc., 24 A.D.3d 249, 250 [1st
Dept 2005], lv denied 7 N.Y.3d 704');">7 N.Y.3d 704 ; see
also Board of Mgrs. of the Saratoga Condominium v
Shuminer, 148 A.D.3d 609, 611 [1st Dept 2017]), and
therefore, this branch of the breach of contract claim should
have been dismissed.
alleged six different bases for the fraudulent inducement
claim. The alleged misrepresentations regarding assistance
operating the preschool, the working fire alarm, and use of
the stroller area, area near the kitchen, and upstairs gym,
are all" directly related to a specific provision of the
contract, '" not collateral to the lease, and cannot
be used to sustain a fraudulent inducement claim (Orix
Credit Alliance, Inc. v Hable Co., 256 A.D.2d 114, 115
[1st Dept 1998]; see also Wyle Inc. v ITT Corp., 130
A.D.3d 438, 446 [1st Dept 2015]). Plaintiffs properly pled a
fraudulent inducement claim with respect to defendants
materially misrepresenting that a 2004 letter of no objection
was all plaintiffs would need, failing to disclose to
plaintiffs that defendant intended to remove oversight over
homeless individuals on the property, and fraudulently
misrepresenting that homeless individuals were living on the
property legally, when they were doing so illegally (see
Wyle, 130 A.D.3d at 438-439). Plaintiffs properly pled
that, as a result of these statements, which plaintiffs
allege were made with the intention to deceive them, they
signed the lease and developed the property (id.;
White v Davidson, 150 A.D.3d 610, 611 [1st Dept
Court properly dismissed the prima facie tort claim as it
pled dual motives when making allegations regarding this
claim (i.e., that defendant was seeking to take revenge on
plaintiffs and that defendant was attempting to force
plaintiffs out so it could re-let the premises at a higher
rental rate) (seeWigdor v SoulCycle, LLC,
139 A.D.3d 613, 614 [1st Dept 2016], lv denied 28