Opinion
March 20, 2001.
Order, Supreme Court, New York County (Jane Solomon, J.), entered November 24, 1999, which, insofar as appealed from as limited by the briefs, granted defendants residential cooperative's and managing agent's motion for summary judgment to the extent of dismissing plaintiff tenant/shareholder's causes of action for breach of the warranty of quiet enjoyment (1st), harassment (8th, 11th, 14th), intentional infliction of emotional distress (12th), fraud (16th), and claim for punitive damages under her cause of action for breach of the warranty of habitability (10th), unanimously affirmed, without costs.
S. Timothy Ball, for plaintiff-appellant.
David Kasdan, for defendants-respondents.
Before: Rosenberger, J.P., Williams, Mazzarelli, Andrias, Rubin, JJ.
The cause of action for breach of the covenant of quiet enjoyment was properly dismissed upon evidence establishing that there was neither an actual nor constructive eviction (Herstein Co. v. Columbia Pictures Corp., 4 N.Y.2d 117, 121). The causes of action for harassment were properly dismissed since New York does not recognize such a cause of action (Goldstein v. Tabb, 177 A.D.2d 470, 471, lv denied 80 N.Y.2d 753). We would add with respect to the fourteenth cause of action, based on the coop's promulgation of a rule prohibiting deliveries of food by placing the food packages on the floor of the elevator and sending the elevator to shareholders' floors and requiring residents to pick up food deliveries in the lobby, that the record is devoid of evidence that such action was not in furtherance of legitimate concerns for safety and cleanliness (see, Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 539). The cause of action for intentional infliction of emotional distress, based on the coop's failure to unscrew a lightbulb in plaintiff's apartment for four days, does not allege conduct so extreme and outrageous as to be beyond all possible bounds of decency (see,Fischer v. Maloney, 43 N.Y.2d 553, 557). The cause of action for fraud, based upon Board members' alleged statements concerning noise in the building and the building's water pressure made during their interview of plaintiff in connection with her purchase application, is not sustainable absent evidence that such statements were known to be false (see, Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 421). Plaintiff's cause of action for breach of the warranty of habitability, alleging defendants' refusal to enforce House Rules and to remedy noise, low water pressure and other unpleasant living conditions in the building, do not show conduct so "morally reprehensible" as to warrant an award of punitive damages (see, New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 315). We have considered plaintiff's other contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.