Opinion
March 10, 1998
Appeal from the Supreme Court, New York County (Carol Huff, J.).
The motion court reviewed the allegations of the first amended complaint pursuant to the appropriate standard (see, Kliebert v. McKoan, 228 A.D.2d 232, lv denied 89 N.Y.2d 802), and properly dismissed the first, third, fifth and sixth causes of action relating to the garden, and the light and air above it, for failure to state a cause of action based upon an implied easement by necessity (see, Pickett v. Whipple, 216 A.D.2d 833, 834); for failure to state a cause of action based on an implied easement by estoppel and representation (see, Lafayette Auvergne Corp. v. 10243 Mgt. Corp., 35 N.Y.2d 834; Olin v. Kingsbury, 181 App. Div. 348, 355; Katz 737 Corp. v. Shapiro, 107 Misc.2d 127, 129; Aliber v. Remsen St. Co., 31 Misc.2d 786); and for failure to state a cause of action based on an interest arising from an appurtenance to a leasehold (see, Kingsway Realty Mtge. Corp. v. Kingsway Repair Corp., 223 App. Div. 281, 284).
The motion court also properly dismissed the second and fourth causes of action which allege that the garden and the open space above it constituted a service within the meaning of the Rent Stabilization Law, since proceedings on that issue were pending before the Division of Housing and Community Renewal (see, Sohn v. Calderon, 78 N.Y.2d 755, 768-769; Greenthal Co. v. 301 E. 21st St. Tenants' Assn., 91 A.D.2d 934, 935).
The seventh cause of action alleging a breach of the covenant of quiet enjoyment was properly dismissed, since the complaint failed to allege any interference with easements or appurtenances or an actual or constructive eviction (see, Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 85-86; Murphy v. Vivian Realty Co., 199 A.D.2d 192, 195). The eighth cause of action, relating to documents, was properly dismissed since it was dependent on the viability of the prior causes of action.
Finally, the motion court properly denied plaintiff's' motion for leave to serve a second amended complaint in order to interpose a ninth cause of action seeking to pierce the corporate veils of defendants 177 East 77, Inc. and 178 E. 78, Inc., since the motion was unsupported by particularized statements detailing fraud or other corporate misconduct (see, CPLR 3013; Walkovszky v. Carlton, 18 N.Y.2d 414, 417; Metropolitan Transp. Auth. v. Triumph Adv. Prods., 116 A.D.2d 526) and would in any event be irrelevant in light of the dismissal of the complaint.
We have considered plaintiffs' remaining arguments and find them to be without merit.
Concur — Rosenberger, J. P., Ellerin, Nardelli and Wallach, JJ.