Opinion
17411-, 17412 Index No. 652601/21 Case Nos. 2022-01655, 2022-01657
02-28-2023
228 W 72 LLC, Plaintiff-Appellant, v. 228A WEST 72 LLC et al., Defendants-Respondents.
Rabinowitz, Galina & Rosen, Mineola (Daniel Rabinowitz of counsel), for appellant. Rosenberg & Estis, P.C., New York (Peter B. Kane of counsel), for 228A West 72 LLC, respondent. Butler, Fitzgerald, Fiveson & McCarthy, New York (David K. Fiveson of counsel), for First American Title Insurance Company, respondent.
Rabinowitz, Galina & Rosen, Mineola (Daniel Rabinowitz of counsel), for appellant.
Rosenberg & Estis, P.C., New York (Peter B. Kane of counsel), for 228A West 72 LLC, respondent.
Butler, Fitzgerald, Fiveson & McCarthy, New York (David K. Fiveson of counsel), for First American Title Insurance Company, respondent.
Kern, J.P., Oing, Kennedy, Mendez, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Laurence Love, J.), entered on or about October 20, 2021, which granted the motions of defendants 228A West 72 LLC and First American Title Insurance Company to dismiss the complaint, unanimously affirmed, with costs. Order, same court and Justice, entered February 14, 2022, which granted defendant 228A West 72 LLC's motion to reargue, and upon reargument, granted its request for an award of attorneys’ fees, unanimously affirmed, with costs.
The motion court properly dismissed plaintiff's claim for negligence against defendant 228A West LLC (228A West), as the complaint failed to allege a breach of duty independent of the contract for sale of the subject premises ( 320 W. 115 Realty LLC v. All Bldg. Constr. Corp., 194 A.D.3d 511, 512, 149 N.Y.S.3d 28 [1st Dept. 2021] ; see also Rosner v. Bankers Std. Ins. Co., 172 A.D.3d 1257, 1259, 102 N.Y.S.3d 200 [2d Dept. 2019] ). Plaintiff's breach of contract claim against 228A West also fails because the contract made no representations regarding the alleged inoperable elevator on the premises (see Rivietz v. Wolohojian, 38 A.D.3d 301, 301, 832 N.Y.S.2d 505 [1st Dept. 2007] ). Moreover, the contract contains a clause providing that the premises were sold "as is" and that plaintiff was acquiring the premises subject to "all Violations" of state and municipal laws and ordinances ( id. ; see e.g. Kasten v. Golden, 50 A.D.3d 1098, 1099, 857 N.Y.S.2d 228 [2d Dept. 2008] ). Plaintiff cannot claim active concealment of the elevator or justifiable reliance on any false representations, as it inspected the premises prior to the closing and was notified of open and public New York City Department of Building (DOB) violations relating to the elevator (see Rivietz, 38 A.D.3d at 301, 832 N.Y.S.2d 505 ; see also 85–87 Pitt St., LLC v. 85–87 Pitt St. Realty Corp., 83 A.D.3d 446, 921 N.Y.S.2d 40 [1st Dept. 2011] ).
Plaintiff's breach of contract claim against defendant First American Title Insurance Company (First American) was properly dismissed, as plaintiff failed to allege any title defects that would be covered by the title policy issued by First American ( L. Smirlock Realty Corp. v. Title Guar. Co., 52 N.Y.2d 179, 187, 437 N.Y.S.2d 57, 418 N.E.2d 650 [1981] ; see also Logan v. Barretto, 251 A.D.2d 552, 553, 675 N.Y.S.2d 102 [2d Dept. 1998] ). Plaintiff's negligence claim was also properly dismissed because "a cause of action for negligence in searching title does not lie in an action on the policy" ( Citibank v. Chicago Title Ins. Co., 214 A.D.2d 212, 216, 632 N.Y.S.2d 779 [1st Dept. 1995] ), and plaintiff did not allege that its claim against the insurer is "independent of the parties’ contract for insurance" (see Choudhary v. First Option Tit. Agency, 107 A.D.3d 657, 658–659, 967 N.Y.S.2d 86 [2d Dept. 2013] ). In any event, plaintiff acknowledged that First American notified it of the DOB violations with respect to the elevator in a municipal search provided as a courtesy.
The motion court properly granted reargument ( CPLR 2221[d][2] ) and awarded attorneys’ fees to 228A West pursuant to the terms of the contract between the parties (see Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5, 511 N.Y.S.2d 216, 503 N.E.2d 681 [1986] ).