Nicosia v. Board of Managers of the Weber House Condominium

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 22, 2008, that granted the motions of defendants Board of Managers of the Weber House Condominium, KESY LLC and Kevin MacCarthy to dismiss the complaint and to cancel the notice of pendency plaintiff filed against the property, modified, on the law, to reinstate the second cause of action (in part) and fifth cause of action, and otherwise affirmed, without costs. The court based its grant of defendants’ motions to dismiss on its finding that plaintiff had waived his right to bring any claims arising out of his contract with defendant Axminster to purchase the condominium unit. In doing so, the court improperly made a factual determination that defendant Board’s exercise of its right of first refusal was valid (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Accordingly, we modify to reinstate those claims that we find to be viable, namely, that part of the second cause of action for tortious interference with contract and the fifth cause of action for breach of contract against Axminster. Elaintiff states a cause of action for tortious interference with a contract against defendants Board of Managers, KESY and MacCarthy by alleging that he had a contractual relationship with Axminster, that KESY, the Board and MacCarthy had knowledge of the contract, and that MacCarthy, the Board and [456] KESY intentionally interfered with that contract “by improperly purporting to exercise a right of first refusal,” causing plaintiff financial damages (see NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614, 621 [1996]; cf. 85 Fifth Ave. 4th Floor, LLC v I.A. Selig, LLC, 45 AD3d 349 [2007]). The fifth cause of action, for breach of contract against Axminster only, should be reinstated because Axminster did not move to dismiss, but instead answered the complaint and asserted affirmative defenses. For unstated reasons, the motion court dismissed the complaint in its entirety. Plaintiff’s remaining claims should be dismissed as either duplicative (see Turk v Angel, 293 AD2d 284 [2002], lv denied 100 NY2d 510 [2003]), unnecessary (see Bartley v Walentas, 78 AD2d 310, 312 [1980]) or insufficient to state a cause of action (see MBF Clearing Corp. v Shine, 212 AD2d 478, 479 [1995]). Plaintiffs fraud claim should be dismissed for the additional reason that it is not pleaded with particularity (CPLR 3016 [b]). A cause of action for fraud requires plaintiff to plead: (1) a material misrepresentation of a fact, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance and (5) damages (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Plaintiffs complaint is bare-bones. Among other deficiencies, plaintiff does not allege how he learned that the Board was purporting to exercise its right of first refusal. Plaintiff attaches an August 6, 2007 letter that the Board sent to Axminster’s attorney stating that the Board was electing to exercise its right of first refusal. However, plaintiff does not articulate who communicated this information to him or when he received this information. Thus, we are left to guess that somehow Axminster’s attorney communicated the Board’s decision to plaintiff at some point. Plaintiff also does not explain how he relied to his detriment on the Board’s alleged exercise of its right of first refusal. While we can suppose that plaintiffs reliance somehow involved his refraining from taking steps to enforce the closing, it is not for us to interject our supposition into plaintiffs pleading. Nor is it our place to explain what damages might have flowed from the failure to close. The dissent points to allegations from the tortious interference cause of action where plaintiff alleges that because of defendants’ wrongful conduct, “plaintiffs contract with Axminster to purchase the Unit was not consummated.” However, this language does not appear in plaintiffs cause of action for fraud. And, even if it did, this language would hardly satisfy the CPLR 3016 (b) requirement that the facts constituting the fraud “be stated in detail.” Certainly, what plaintiff did or did not do after learning [457] that the Board was exercising its right of first refusal, and what damages flowed from that action or inaction, are within plaintiffs purview. While the dissent may be correct that plaintiff can prevail on his fraud claim “if Axminster reasonably relied on the misrepresentation in selling the unit to KESY,” plaintiff has not alleged this. Rather, plaintiffs allegations concerning Axminster are more nefarious—that Axminster directly breached its duties to plaintiff by failing to perform “its required due diligence to determine if the sale to KESY was in accordance with the Bylaws.” Thus, the facts of this case could very well eventually support a fraud claim. However, plaintiff has not pleaded these facts sufficiently and, unlike the dissent, we decline to speculate and infer the facts for him, especially given our liberal rules regarding amendment of pleadings. That part of plaintiffs second cause of action for tortious interference with prospective advantage was properly dismissed. Because plaintiff and Axminster had already entered into a contract, plaintiff failed to plead any prospective business relationship. We cannot see how plaintiff would have any relationship with Axminster, separate from the contract, upon which to recover. Moreover, because the fraud claim is not viable in its present form, plaintiff has failed to plead conduct “amount[ing] to a crime or an independent tort” or conduct the sole purpose of which was to inflict intentional harm on plaintiff, sufficient to support this cause of action (see Carvel Corp. v Noonan, 3 NY3d 182, 190 [2004]). Concur—Friedman, J.P., Moskowitz, DeGrasse, JJ.