Opinion
No. 401609–08.
2010-06-29
SUN GOLD CORP., Plaintiff, v. Moon STILLMAN a/k/a Moon An Stillman, a/k/a Mi An Stillman a/k/a Mi Hee An a/k/a Mi Hee Stillman, Mark B. Stillman, R.A. 35 West 43 Enterprises, Inc., 35 West 43rd Street Realty Corporation, 35 West 43rd Street Realty Associates, 35 West 43rd Street Enterprises, Inc. and 35 West 43 Enterprises, Inc., Defendants.
Eliot F. Bloom, Esq., for plaintiff. Jordan Wolff, Esq., for defendant Mark B. Stillman.
Eliot F. Bloom, Esq., for plaintiff. Jordan Wolff, Esq., for defendant Mark B. Stillman.
Rizpah Morrow, Esq., for defendant 35 W. 43 Enterprises.
O. PETER SHERWOOD, J.
Plaintiff Sun Gold, Corp. (“Sun Gold”) commenced this action against defendants Moon Stillman a/k/a Moon An Stillman a/k/a Mi An Stillman a/k/a Mi Hee An a/k/a Mi Hee Stillman (“Moon”), Mark Stillman (“Stillman”), and R.A. 35 West 43 Enterprises, Inc. (the “Landlord”), net lessee of the building located at 35 West 43rd Street, New York City (the “Building”).
Pursuant to the lease agreement between the Landlord and Sun Gold (the “Lease”), Sun Gold subleased from the Landlord the third floor and a portion of the fourth floor of the Building (the “Premises”). The Lease stated that the Premises was to be used as a “massage spa.”
The record does not show whether the remaining defendant corporate entities are related to the Landlord in any way.
In its complaint, Sun Gold asserted various causes of action against the defendants, including, among others, fraud, conversion, tortious interference with contract, breach of contract, conspiracy to commit fraud, trespass, and wrongful eviction. Pursuant to an order of this court, dated February 10, 2009, the fraud and conspiracy causes of action were dismissed; the motion of Sun Gold for a default judgment against Moon was denied; and Sun Gold was directed to serve an amended complaint upon all defendants (the “Amended Complaint”).
Thereafter, pursuant to an order of this court, dated March 24, 2009 (the “Prior Order”), the motion of Stillman seeking dismissal of all causes of action asserted as against him in the Amended Complaint was granted only to the extent of dismissing the third cause of action (conspiracy to interfere with contract).
In a separate order dated February 10, 2009, this court denied plaintiff's motion for entry of a default judgment against Moon for failure to answer the original complaint or to appear in this action, plaintiff having failed to effect proper service of the summons and complaint on her. The court ordered plaintiff to serve a summons and the amended complaint upon Moon pursuant to the service of process provisions of CPLR § 308(1) or (2) and to file proof of such service with the court within ten (10) days after such service. No record of service pursuant to the order of February 10, 2009 has been filed with the court.
With discovery now completed, Stillman moves for summary judgment pursuant to CPLR § 3211 and 3212 (motion sequence number 006) dismissing all remaining causes of action asserted as against him in the Amended Complaint, as well as the cross claims (based on “reimbursement”) asserted against him by the Landlord. In turn, the Landlord moves pursuant to CPLR § 3211 and 3212 (motion sequence number 007) to dismiss all causes of action asserted as against it in the Amended Complaint.Motion sequence numbers 006 and 007 are consolidated for purposes of disposition and are decided as follows.
Background
The background facts of this case were discussed in the Prior Order. Familiarity with that information is presumed and will not be repeated, except as required. Where appropriate, this decision and order reflects the additional relevant information obtained via discovery conducted by the parties in this action.
Moon has not appeared and did not participate in discovery.
In January 2006, Sun Gold, by its alleged sole shareholder-president Peggy Cho (“Cho”), entered into the Lease for a term of 10 years with the Landlord. Subsequent to execution of the Lease, Sun Gold made improvements and renovations for the purpose of outfitting the Premises as a massage spa. In July 2006, Sun Gold (through Cho) hired defendant Moon and installed her as manager to run the business. The record reflects that Moon, a native of Korea holding a passport issued in 1999 by the Republic of Korea, was a former girl friend of co-defendant Stillman, an attorney licensed to practice law in New York. Stillman states that he started a romantic relationship with Moon in 2005, and that he was never married or engaged to be married to her (Stillman Affidavit, ¶¶ 4–5). The relationship ended in the autumn of 2007.
Cho was an absentee owner. According to Cho, preparations for fulltime operation of the business caused her to fall ill from exhaustion (Bloom Affirmation ¶ 9). She did not visit the Premises and did not know what was happening there because Moon imprisoned her in Cho's apartment and beat her up (Cho Deposition at 30, 49–50, 93). She also testified that Moon took her telephones, gave her drugs and threatened her life, ( id at 25–26, 51, 54–55). The illness and imprisonment are both alleged as reasons for her absence from the business.
Within a few months after entering into the Lease, Sun Gold fell behind in its rent obligations. Cho testified that she was unable to write rent checks because she was imprisoned by Moon ( id. 54). The Landlord duly served a rent demand notice in January 2007, and commenced a non-payment proceeding against Sun Gold in February 2007. Thereafter, the Landlord, by its president Vivek Singhal (“Singhal”), met with Moon regarding the payment of the rent arrears (Singhal Deposition, at 21–22). Cho was not present, but had earlier represented to Singhal that Moon was her niece and that Moon would manage the business ( id. at 16–22). During the meeting, Moon delivered a document to Singhal which purportedly indicated that Cho had agreed to sell Sun Gold's business to Moon ( id. at 24–27). Moon agreed to assume responsibility for bringing the rent current.
Prior to the meeting, in or about January 2007, Moon asked Stillman to draft a document to reflect her purchase of all Sun Gold capital stock and assets. Stillman prepared the requested document (the “Transfer Letter”) without conducting any due diligence (Stillman Affidavit, ¶¶ 11–12; Stillman Deposition, at 17–18). After Moon delivered a copy of the Transfer Letter to Singhal,
the Landlord discontinued the eviction proceedings against Sun Gold based on Moon's promise to bring the rent current. Thereafter, Moon paid the rental arrears owed under the Lease over a period of time (Singhal Deposition, at 29–37).
The Transfer Letter has not been produced by any party. However, Singhal testified that he “had the paper,” but somehow lost it and does not now have it (Singhal Deposition, at 23).
Subsequently, Moon allegedly asked Fenghua Zhao (“Zhao”), a Sun Gold employee hired by Moon, to enter into a new lease for the Premises with the Landlord because Moon purportedly did not want the Lease to be in her name or in Sun Gold's name ( id. at 37–38). Following the signing of the new lease (the “Zhao Lease”), Moon allegedly told Singhal that Zhao did not want to pay the rental amounts thereunder and Moon began to look for another party to take over the Zhao Lease ( id. at 43–44). The record reflects that Zhao has been deported from the United States due to her illegal immigrant status. Stillman was not involved in the negotiation of the Zhao Lease.
In July 2007, Stillman was contacted by attorney, Yohan Choi, who represented Thomas Kim (“Kim”), a non-party to this action, in connection with Kim's purchase of Sun Gold's assets from Moon, and the takeover of the lease for the Premises (the “Kim Transaction”) (Stillman Affidavit, ¶ 17). At Moon's request, Stillman reviewed and made “minor” comments to the transaction documents prepared by Choi ( id., ¶ 18). As a result of the Kim Transaction, and as all past due rents were paid, the Landlord signed a new lease with Kim for the Premises, which continued to be operated as a massage spa (the “Kim Lease”) (Singhal Deposition, at 46–48). Neither Stillman, Singhal nor Cho did not attend the closing of the Kim Transaction. Apparently, Kim kept using the name of Sun Gold for the business.
Sometime after closing, Moon went to Singhal's office and gave him two cashier checks (aggregating $50,000) made payable to RKR Properties Inc. (“RKR”), a real estate company owned by the Landlord. Moon told Singhal that the checks were made out in error at the closing (Singhal Deposition, at 54–58). As a courtesy to Moon, Singhal agreed to deposit the checks into RKR's bank account. Thereafter he issued a number of checks “in blank” drawn on RKR's bank account aggregating $55,000 ( id. at 65–66). Singhal testified that Moon asked him to issue the checks “in blank” so that she could later fill in Stillman's name as payee. He later realized that he had made a mistake in giving Moon “$5,000 extra” ( id. at 61–67).
Moon gave Stillman the checks that were drawn on RKR's bank account. In addition, she gave Stillman two checks aggregating $45,000 issued by or for the benefit of Kim and made payable to Stillman. (Stillman Affidavit, ¶ 29). Stillman states that as a favor to Moon, he deposited all the checks (collectively, the “Kim Transaction Checks”) into his checking account, because Moon told him that she did not have a bank account at that time ( id., ¶ 30). He later made withdrawals “in a cumulative amount equal to the total amount of the Kim Transaction Checks,” and delivered the money to Moon in accordance with her instructions ( id., ¶ 32).
In September 2007, Cho appeared at the Premises, and became very upset when she found out that the Sun Gold business had been sold to Kim, a stranger to Cho (Cho Deposition, at 66–68). Cho then retained Eliot Bloom, Esq.(“Bloom”) to represent her and Sun Gold's interests ( id. at 70). In a letter dated September 22, 2007, Bloom informed Stillman that Cho has an interest in Sun Gold, the Lease and the Premises (Stillman Affidavit, ¶ 36). Stillman states that, in January 2008, he received a second letter from Bloom, informing him for the first time that Cho possessed two checks drawn on Stillman's IOLA account. The checks, made payable to “Moon An Stillman,” are dated January 10 and 16, 2007, which is at about the same time Stillman drafted the Transfer Letter at Moon's request (the “Escrow Checks”) ( id., ¶ 38–40). The checks are in the aggregate amount of $700,000. Stillman asserts that Moon An Stillman is a fictitious name, that the Escrow Checks were forged as they were never signed by him, that he did not give the checks to Cho, and that he did not know how they came into Cho's possession ( id., ¶¶ 38–42). Cho states that she received the checks from Moon (Cho Deposition at 120).
Discussion
In Alvarez v. Prospect Hospital (68 N.Y.2d 320, 324 [1986] ), the Court of Appeals noted the standards for granting or denying a summary judgment motion pursuant to CPLR 3212 as follows:
[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such ... showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action [internal citations omitted].
Adhering to these standards, the courts scrutinize summary judgment motions, as well as the facts and circumstances of each case, to determine whether relief may be granted (Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974] [because entry of summary judgment “deprives the litigant of his day in court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues”]; People v. Grasso, 50 AD3d 535, 544 [1st Dept 2008][in considering a motion for summary judgment, “all of the evidence must be viewed in the light most favorable to the opponent of the motion”] ). However, conclusory allegations unsupported by competent evidence are insufficient to defeat a summary judgment motion (Alvarez, 68 N.Y.2d at 324–25).
“The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues” (Sheehan v. Gong, 2 AD3d 166, 168 [1st Dept 2003] ). Summary judgment should be granted in favor of the movant if there are no material and triable issues of fact (Francis v. Basic Metal Inc., 144 A.D.2d 634 [2nd Dept 1988] ). Furthermore, documentary evidence must establish conclusively a defense to a claim as a matter of law, before the claim can be dismissed pursuant to CPLR 3211(a)(1) (Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [1st Dept 2004] ).
1. Claims Against The Landlord
The Amended Complaint asserts four causes of action against the Landlord, namely: breach of contract, wrongful eviction, trespass and conversion. A. Breach of Contract (Fourth Cause of Action)
Sun Gold alleges that the Landlord breached the Lease by entering into the Kim Lease, which resulted in the wrongful termination of its rights and interests in the Premises. Sun Gold also alleges that by signing the Kim Lease the Landlord constructively evicted Sun Gold without legal process (Amended Complaint, ¶¶ 74–80).
In order to prevail on a breach of contract claim, a plaintiff must establish each of the following four elements: (1) existence of a valid contract; (2) plaintiff's performance of the contract; (3) defendant's material breach of the contract; and (4) damages ( Noise In The Attic Productions, Inc. v. London Records, 10 AD3d 303 [1st Dept 2004] [referencing N.Y. PJI 4:1–elements of breach of contract]; and Furia v. Furia, 116 A.D.2d 694 [2d Dept 1986] ). Thus, unless a plaintiff has performed the contract pursuant to its terms, the plaintiff has not established all the required elements to sustain a breach of contract claim, even if the other three elements are satisfied.
Sun Gold was the named tenant under the Lease but failed to pay rent for several months. Having defaulted on the Lease, the Landlord initiated a non-payment proceeding against Sun Gold. Because Sun Gold breached a material term of the Lease, it cannot establish all the required elements to sustain a breach of contract claim against the Landlord. Accordingly, this claim must be dismissed. B. Wrongful Eviction (Fifth Cause of Action)
As to the claim of wrongful eviction, the Amended Complaint alleges that the Lease required the re-entry by Landlord to be preceded by a summary proceeding but that Sun Gold was evicted from the Premises without judicial intervention or its consent. The complaint also alleges that the Landlord, jointly with Moon and Stillman, resorted to “extralegal means, intimidation and threats in order to vitiate the lease and to eject Plaintiff from the premises” (Amended Complaint, ¶¶ 86–88).
Section 853 of the Real Property Actions and Proceedings Law (RPAPL) provides a statutory basis for a wrongful eviction claim. The statute provides, in sum, that if a person is ejected from real property in a forcible or unlawful manner, such person is entitled to recover damages in an action against the wrongdoer.
In this case, it cannot be disputed that the Landlord was entitled to exercise its contractual right to terminate the Lease due to Sun Gold's failure to pay rent, and to commence a non-payment proceeding against Sun Gold. It is equally undisputed that Moon had apparent authority to negotiate with the Landlord regarding Sun Gold's tenancy under the Lease. In fact, had Moon not paid the rental arrears and represented to Singhal that she had purchased Sun Gold's business by showing him the Transfer Letter,
the Landlord would have continued with the legal proceedings resulting in Sun Gold's ejectment from the Premises. Also, there is no evidence in the record to support the allegation that the Landlord conspired or acted in concert with Stillman and Moon, or engaged in acts of “intimidation and threats” to eject Sun Gold from the Premises. Rather, the record shows that Singhal and Stillman never interacted with each other until after Cho appeared at the Premises in September 2007, more than two months after the Kim Transaction was consummated.
Although a copy of the Transfer Letter is not in the record (as noted above), no one has disputed its existence.
On the other hand, the record reflects that Sun Gold entered into the Lease in order to operate a massage spa. Although the Premises was outfitted for such purpose, Cho did not hire a licensed masseuse as required by law. There is sufficient evidence tending to show that Sun Gold's use of the Premises was illegal, despite Cho's unsubstantiated assertions to the contrary. That illegal use, violated various statutes and regulations, including, the Nuisance Abatement Law, Administrative Code of City of N.Y. § 7–703, New York Zoning Resolution § 12–10, and New York Education Law (see Landlord's brief in support of dismissal of the Amended Complaint). Sun Gold does not dispute the substance and legal effect of these statutes and regulations.
New York's Real Property Law (RPL) § 231(1) provides, in sum, that whenever the lessee other than the owner of the premises uses the leased premises for any illegal trade or business, the lease becomes void and the landlord may re-enter the premises (RPL § 231[1] ). Because Sun Gold's use of the Premises was illegal, the Lease was void, and the Landlord was entitled to re-enter the Premises. Accordingly, the wrongful eviction claim against the Landlord should be dismissed. C. Trespass to Land (Sixth Cause of Action)
The Amended Complaint alleges that the Landlord, together with Stillman and Moon, “intentionally caused a third party ( i.e. Kim) to enter upon the premises” and “prevented the actual use of the premises by Plaintiff,” which caused Sun Gold damages as a result of such trespass to land (Amended Complaint, ¶¶ 93–97).
In New York, the common law provides that a person who enters the land of another without permission, even if the entry is innocent or mistaken, may be liable for trespass (104 N.Y. Jur 2d, Trespass, § 10, at 472). Also, it has been held that a defendant may be liable for trespass if it caused
or directed others to trespass onto the plaintiff's property (Spellburg v. South Bay Realty, LLC, 49 AD3d 1001 [3d Dept 2008] ).
Although the Landlord's entry into the Kim Lease dispossessed Sun Gold from the Premises, the trespass claim, similar to the wrongful eviction claim, is unavailing. Because the Landlord was entitled to re-enter the Premises when the Lease became void as a result of Sun Gold's illegal use of the Premises, the trespass of land claim is not sustainable and should be dismissed.
D. Conversion of Personal Property (First Cause of Action)
Sun Gold alleges that the Landlord, along with Stillman and Moon, intentionally converted Sun Gold's personal property, specifically the personal property and improvements it made to the Premises, which deprived Sun Gold of its right to possession of such property, resulting in damages (Amended Complaint, ¶¶ 55–57).
To establish a claim of conversion, plaintiff must allege (1) its possessory right or interest in the property, and (2) defendant's dominion over the property or interference with such property in derogation of plaintiff's rights (Colavito v. New York Organ Donor Network, Inc., 8 NY3d 43, 50 [2006] ). Generally speaking, the claim of conversion involves the physical theft of specific and tangible personal property, not real property
( Garelick v. Carmel, 141 A.D.2d 501, 502 [2d Dept 1988] ).
Thus, as between the Landlord and Sun Gold, to the extent that the claim includes improvements or fixtures affixed to the Premises that cannot be removed without causing substantial damages to the Premises, such items may not be the subject of the conversion claim because they become a part of the leasehold or real property.
Sun Gold does not argue that the Landlord exercised control or dominion over personal property, which was mainly trade fixtures consisting of massage tables, appliances and furniture. Rather, it argues that the Landlord interfered with its rights by allowing the transfer, via the Kim Transaction, of its interest in the Lease along with the personal property in the Premises, resulting in the dispossession of its rights in the chattel.
The argument is unpersuasive. It is undisputed that Cho installed Moon as the manager of the business. Cho introduced Moon to Singhal and advised that Moon would run the place. It is also undisputed that Sun Gold failed to pay rent for several months
and it was Moon who paid the rental arrears. Further, the existence of the Transfer Letter is undisputed and was presented by Moon, Sun Gold's designated manager, to Singhal to show that she had purchased the business. The Landlord was not a party to the Kim Transaction and did not exercise dominion over the fixtures. Moon had voidable title to Sun Gold and the sale of the business to Kim for value constituted a transfer of good title ( Zendman v. Harry Winston, Inc., 305 NY180 [1953]; Sheridan Suzuki, Inc. v. Caruso Auto Sales, Inc., 110 Misc.2d 823 (Sup Ct Erie Co 1981] ).
According to Singhal, Cho told him she would pay the rent but instead avoided him (Shindal Deposition, 18, 32).
There is no evidence to support the allegation that Singhal permitted the Kim Transaction so as to intentionally interfere with Sun Gold's rights in the personal property. In order to establish a claim of conversion it must be shown that someone “intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession” (Colavito, 8 NY3d at 49–50 [emphasis added] ). Equally important is the undisputed fact that the Landlord was not a party to the Kim Transaction did not benefit from the sale between Moon and Kim (Singhal Affidavit, ¶ 17). In fact the Landlord had to incur costs to cure the certificate of occupancy violations placed on the Premises by the regulatory authorities, “which entailed removing the partitions and plumbing installations made by [Sun Gold]” ( id ., ¶ 26).
Because there is no evidence that the Landlord exercised dominion over the fixtures, intentionally interfered with Sun Gold's rights in the personal property via the Kim Transaction and benefitted financially from the Kim Transaction, the conversion claim as against the Landlord should be dismissed.
2. Claims Against Stillman
The following claims are asserted against Stillman in the Amended Complaint: tortious interference with contract, trespass, wrongful eviction and conversion.
Stillman functioned as the attorney for Moon. He had no duty to Sun Gold (Block v. Brecher, Fishman, Feit, Heller, Rubin & Tannenbaum, 301 A.D.2d 400, 401 [1st Dept.2003] ). An alleged failure to perform what constitutes the requisite amount of due diligence is not a viable theory for imposition of liability on an attorney for injuries suffered by third parties. Stillman had no duty to conduct “due diligence” for the benefit of Sun Gold or to assure that Moon was authorized to transfer title to the business.
Absent collusion, malice or bad faith, an attorney is not liable to third parties for client fraud (see Purvi Enterprises, LLC v. City of New York, 62 AD3d 508, 510 [1st Dept 2009] and Eurycleia Partners, LP v. Steward & Kissel, LP, 46 AD3d 400, 401 [1st Dept 2007] ). The record discloses no admissible evidence of personal knowledge by Stillman or active participation by him in any activity to deprive Cho of her property. Plaintiff has offered no admissible evidence that Stillman knowingly conspired with Moon (or anyone else) to deprive Cho of her property. A. Tortious Interference With Contract (Second Cause of Action)
To establish a tortious interference with contract claim, a plaintiff must allege (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's procurement of the third party's breach of the contract; (4) actual breach of the contract; and (5) damages (see Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 [1996] ). An essential element of this claim is proof that the contract would not have been breached “but for” the tortious acts of the defendant (Lana & Samer, Inc. v. Goldfine, 7 AD3d 300, 301 [1st Dept 2004] ).
In the Amended Complaint, Sun Gold asserts that it entered into a valid lease with the Landlord for the Premises, that Stillman and Moon had actual knowledge of the Lease, but that they intentionally procured a breach of the Lease by the Landlord, resulting in damages to Sun Gold (Amended Complaint, ¶¶ 62–67).
While Sun Gold might have sufficiently pled a cause of action sounding in tortious interference with contract (see Prior Order, pp 6–7), it has failed to show any triable issue of fact to defeat the motion for summary judgment. First, there was no valid contract, Sun Gold having breached the Lease by not paying the rents for the Premises. Second, although the Lease was validly entered into by Sun Gold and the Landlord, it became void or voidable when Sun Gold operated a massage spa without a licensed massage therapist, as required by law, which constituted an illegal use of the Premises. Moreover, the Landlord has asserted that, because of Sun Gold's alteration and partitioning of (as well as the plumbing installed at) the Premises, the certificate of occupancy for the Building was violated, which rendered the Lease unenforceable.
Assuming that Stillman knew of the existence of the Lease and was aware that Sun Gold might be damaged by its termination, there is no evidence supporting the claim that “but for” the alleged tortious acts of Stillman, the Landlord would have continued the Lease.
Absent such evidence, plaintiff's tortious interference cause of action must be dismissed (see Bowles v. Combs, 25 AD3d 370, 373 [1st Dept 2006] ).
The evidence in the record points in the opposite direction.
Additionally, drafting of the Transfer Letter and reviewing documents relating to the Kim Transaction, does not amount to a procurement of a breach of the lease by the Landlord. In drafting the Transfer Letter, Stillman acted as Moon's attorney. An attorney may not be held liable for intentional interference with contract for purported damages caused by services performed on behalf of a client, absent a showing of fraud or collusion or a malicious or tortious act (see Kline v. Schaum, 174 Misc.2d 988, 990 [App. Term 2d Dept 1997] ). The second cause of action must be dismissed for this reason as well. B. Trespass and Wrongful Eviction (Fifth and Sixth Causes of Action)
Besides asserting the trespass and wrongful eviction claims against the Landlord, the Amended Complaint asserts identical claims against Stillman. Sun Gold now argues that, as a result of the Transfer Letter drafted by Stillman, the Landlord and Kim were caused to believe that Moon had the authority to sell Sun Gold's business via the Kim Transaction, which led to disposition of Sun Gold's rights in the Premises when the Landlord constructively ejected Sun Gold by allowing Kim to occupy the Premises pursuant to the Kim Lease.
Plaintiff has not demonstrated that Stillman entered onto land that was in plaintiff's possession or caused another to do so (see Spellburg v. South Bay Realty, LLC, 49 AD3d 1001, 1002 [3d Dept 2008] ). Plaintiff does not claim that Stillman entered onto the Premises. There is no evidence that he took or intended any act that inevitably resulted in anyone unlawfully entering onto plaintiff's land (see Phillip v. Sun Oil Co., 307 NY328 [1954] ). The fourth cause of action must be dismissed as to Stillman.
Regarding the fifth cause of action for wrongful eviction, the sole ground asserted as a basis for the claim is the assertion that, as attorney for Moon, Stillman drafted the Transfer Letter (see Bloom Affidavit, ¶ 100). This claim is insufficient to state a cause of action for wrongful eviction.Even though the Landlord's entry into the Kim Lease dispossessed Sun Gold from the Premises, the trespass and wrongful eviction claims cannot be sustained because the Landlord was entitled to terminate the Lease when the rents were unpaid, to commence a non-payment proceeding against Sun Gold to obtain its ejectment, and to re-enter the Premises when the Lease became void due to Sun Gold's illegal use of the Premises. C. Conversion of Personal Property (First Cause of Action)
Plaintiff's claim against Stillman for conversion arises out of his alleged tortious interference with contract ( i.e., transfer of the Lease as a result of the Kim Transaction). The court has already held that the tortious interference claim must be dismissed. Stillman served as advisor to Moon in connection with the Kim Transaction. He owes no duty to Sun Gold. At the time of the Kim Transaction, Moon had voidable title to Sun Gold and, indirectly, the fixtures and equipment in the Premises. Title to the fixtures and equipment passed to Kim as a result of the Kim Transaction. There is no evidence that Stillman had an awareness of Sun Gold's interest in either the equipment or the proceeds of the Kim Transaction. Stillman's limited “involvement in the ... transfer of [Sun Gold's] lease and business” [Bloom Affirmation ¶ 9] cannot form the basis for a claim of conversion as to Stillman.
3. Cross Claims of Landlord
In its answer to the Amended Complaint, the Landlord asserts two cross claims against Stillman and Moon. Because the Landlord is not liable to Sun Gold with respect to any claims asserted against it in the Amended Complaint, as discussed above, its cross claims against Stillman are academic and should be dismissed as moot.
4. Complaint as to Moon
The claims against Moon must be dismissed because of a lack of proper service of process.
Conclusion
Based on all of the foregoing, it is hereby
ORDERED that the motion for summary judgment by defendant Mark B. Stillman (motion sequence number 006) is granted, and the Amended Complaint is dismissed in its entirety as against Mark B. Stillman, with costs and disbursements to defendant Mark B. Stillman as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the motion by defendant R.A. 35 West 43 Enterprises, Inc. to dismiss all causes of action asserted in the Amended Complaint against it (motion sequence number 007) is granted and the Amended Complaint is dismissed in its entirety as against R.A. 35 West 43 Enterprises, with costs and disbursements to the R.A. 35 West Enterprises, Inc. as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly in favor of the Mark B. Stillman and R.A. 35 West Enterprises, Inc. dismissing all claims and cross claims against them in the Amended Complaint; and it is further
ORDERED that the complaint against Moon Stillman a/k/a Moon An Stillman a/k/a Mi An Stillman a/k/a Mi Hee An a/k/a Mi Hee Stillman is dismissed.
This constitutes the decision and order of the court.