Opinion
01-05-2017
Sher Tremonte LLP, New York (Robert Knuts of counsel), for appellant. Cleary Gottlieb Steen & Hamilton LLP, New York (Mark McDonald of counsel), for respondent.
Sher Tremonte LLP, New York (Robert Knuts of counsel), for appellant.
Cleary Gottlieb Steen & Hamilton LLP, New York (Mark McDonald of counsel), for respondent.
Order, Supreme Court, New York County (Carol Edmead, J.), entered on or about November 16, 2016, which, to the extent appealed from as limited by the briefs, granted defendant's motion dismissing in part the complaint, unanimously affirmed, with costs.
The IAS court properly found that article 4 of the parties' lease precludes plaintiff, a commercial tenant, from bringing any claim against defendant landlord for inconvenience, annoyance, or injury to plaintiff's business. This Court has repeatedly interpreted substantially identical lease provisions in this way (see e.g. Bowlmor Times Sq. LLC v. AI 229 W. 43rd St. Prop. Owner, LLC, 106 A.D.3d 646, 647, 966 N.Y.S.2d 48 [1st Dept.2013] ; Duane Reade v. 405 Lexington, L.L.C., 22 A.D.3d 108, 111, 112, 800 N.Y.S.2d 664 [1st Dept.2005] ; Periphery Loungewear v. Kantron Roofing Corp., 190 A.D.2d 457, 599 N.Y.S.2d 554 [1st Dept.1993] ).
Plaintiff's fraud claim failed to allege particular facts (see CPLR 3016 [b] ) and was duplicative of the breach of contract claim (Intl. Plaza Associates, L.P. v. Lacher, 63 A.D.3d 527, 881 N.Y.S.2d 414 [1st Dept.2009] ).
The negligence claim was duplicative of the breach of contract claim (see Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365 [1992] ). In addition, plaintiff failed to allege conduct that "smack[ed] of intentional wrongdoing" sufficient to support a claim for gross negligence (id. at 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365 [internal quotation marks omitted] ). Plaintiff alleged no more than breach of a private contract and loss of the benefit of its bargain.
The IAS court correctly dismissed plaintiff's claims for unjust enrichment and constructive trust, since the claims involve subject matter covered by the parties' enforceable contract (see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ).
ACOSTA, J.P., MAZZARELLI, ANDRIAS, FEINMAN, WEBBER, JJ., concur.