Mission of Saudia Arabia to the United Nations v. Kirkwood Ltd.

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered March 24, 2005, which declared that, with the exception of previously severed causes of action addressed in a prior order and judgment, same court (Karla Moskowitz, J.), [1134] entered October 28, 2003, the balance of the complaint, consisting of a cause of action for punitive damages, was withdrawn by plaintiff with prejudice, unanimously affirmed, with costs. This appeal by defendant Calka, a real estate broker, brings up for review the court’s 2003 disposition, based on alleged fraudulent conduct in an unsuccessful lease transaction involving the same parties (see Sontag v Sontag, 66 NY2d 554 [1986]). There the IAS court awarded plaintiff prospective subtenant summary judgment on its claim for, inter alia, a return of the commission it had paid directly to the broker. The sublease was unenforceable, given the condominium’s express prohibition in the bylaws against such subleases without approval by the board of managers, which defendants failed to secure despite their assurances to plaintiff that board approval was a mere ministerial act. There was a failure of consideration on defendants’ part (see e.g. H.B.A. Realty Co. v Miller, 14 AD2d 607 [1961]); they never did procure a ready, willing and able prospective tenant, inasmuch as plaintiff, under the terms set by the overtenant, could not assume possession of the premises as a sublessee. We have considered the broker’s remaining contentions and find them without merit. Concur—Tom, J.E, Marlow, Gonzalez, Sweeny and Catterson, JJ.