Opinion
161624/2019
06-03-2020
Emily JEROME, Plaintiff, v. 20 EAST 67TH ST. ASSOC. LLC and Samson Management, LLC, Defendants.
John J. Jerome, Esq., New York, NY, for plaintiff. Law Offices of Jordan M. Hyman PLLC, Rockville Centre, NY (Jordan M. Hyman of counsel), for defendants.
John J. Jerome, Esq., New York, NY, for plaintiff.
Law Offices of Jordan M. Hyman PLLC, Rockville Centre, NY (Jordan M. Hyman of counsel), for defendants.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11 were read on this motion to DISMISS.
In this landlord-tenant action, defendants 20 East 67th Street Associates and Samson Management, LLC (Samson), move under CPLR 3211 (a) (7), to dismiss the claim as against both defendants based upon plaintiff's failure to state a valid cause of action. Defendant Samson also moves under CPLR 3211 (a) (1) to dismiss the claims against it on the ground that Samson is not plaintiff's landlord but a disclosed managing agent of the premises without liability. Plaintiff, Emily Jerome, opposes.
The motion is granted in part and denied in part.
Background
Plaintiff is a resident in the State and County of New York. Defendant, 20 East 67th Street Associates LLC (Landlord) is the owner of a seven-story residential property located at 20 East 67th Street in Manhattan, New York (the Property). Defendant Samson acts as the managing agent for the Property.
On January 2, 2019, plaintiff entered into possession of a residential apartment located at apt. 6R at the Property (the apartment) pursuant to a written one-year lease dated January 2, 2019 (the Lease) (defendants exhibit B). The Lease ended on January 31, 2020 (id. ). Rent under the Lease is $4,560.00 per month (id. ). The apartment is located on the sixth floor, two floors below the roof. The Lease contains an option to renew for one year in favor of plaintiff (renewal option). Despite the expiration of the Lease, as of the date of the motion, plaintiff was still in physical possession of the apartment and has not surrendered possession of the apartment to the Landlord.
Plaintiff complains that at the time plaintiff entered the Lease, a notice dated April 2018 was posted at the Property advising of a "Roof Project" (complaint, ¶ 6). Plaintiff was advised by defendants' exclusive broker that the project was completed, that the apartment was quiet and that plaintiff would not hear any construction noise (id. ).
However, from February through May 2019, loud and intrusive drilling was conducted on the roof of the Property. After a lull in construction over the summer, the drilling on the roof was resumed from October through November 2019, five months collectively (id. ). In October 2019, plaintiff learned that defendants were removing asbestos from the Property roof (id. , ¶ 7). Plaintiff complains that it was only after plaintiff confronted the Property superintendent, that defendants posted signs advising of asbestos removal (id. ). The posted signs advised that the asbestos removal would continue until the Fall of 2020 (id. ). Plaintiff alleges that she requested that defendants advise her as to whether the construction noise would continue, and whether safeguards have been employed to ensure plaintiff's health and safety (id. , ¶ 8). Defendants allegedly refused to provide plaintiff with any information (id. ).
Plaintiff argues that defendants have violated and continue to violate plaintiff's rights to quiet enjoyment and habitability of the apartment and have constructively evicted plaintiff from the apartment. Plaintiff seeks damages in the amount of $49,900 as special damages which includes, $28,250 in unearned rentals paid by plaintiff during the five months of construction, $12,000 for plaintiff's moving expenses, $5,000 representing the value of plaintiff's lost renewal option and $4,650 representing plaintiff's security deposit (complaint, ¶ 11).
Discussion
Under CPLR 3211(a)(1), a party may move for judgment dismissing a cause of action on the ground that a "defense is founded upon documentary evidence." Dismissal under CPLR 3211 (a) (1) is warranted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as matter of law," ( Goshen v. Mutual Life Ins., Co. of NY , 98 N.Y.2d 314, 326 [2002] ), and "conclusively disposes of the plaintiff's claim" ( Fortis Fin. Servs., LLC v. Fimat Futures USA , 290 A.D.2d 383, 383 [1st Dept. 2002] ).
On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the allegations contained in the complaint must be presumed to be true and liberally construed. In determining such a motion, "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law"—not whether the complaint correctly labels that cause of action ( Guggenheimer v. Ginzburg , 43 N.Y.2d 268, 275 [1977] ). In other words, whether a claim exists based on "any reasonable view" of the allegations in the complaint ( Aristy-Farer v. State of New York , 29 N.Y.3d 501, 509 [2017] ). "[A]llegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to such consideration" ( David v. Hack , 97 A.D.3d 437, 438 [1st Dept. 2012] ). With these standards in mind, the court turns to the complaint's causes of action.
At the outset, the court rejects defendants' argument that Sampson, as the agent of a disclosed principal, cannot be liable to plaintiff. At this early procedural juncture, the scope of Sampson's duties to plaintiff has not been established (see e.g. Regini v. Board of Mgrs. of Loft Space Condominium , 107 A.D.3d 496, 497 [1st Dept. 2013] ). Moreover, the fact that Sampson is the signatory to the Lease could support a finding that a fiduciary relationship may have existed between plaintiff and Sampson (see Lease, defendants [see prior comment] exhibit B; cf. Andejo Corp. v. South St. Seaport Ltd. Partnership , 40 A.D.3d 407, 407 [1st Dept. 2007] ).
"To be an eviction, constructive or actual, there must be a wrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the demised premises" ( Barash v. Pennsylvania Term. Real Estate Corp. , 26 N.Y.2d 77, 82 [1970] ; "[C]onstructive eviction exists where, although there has been no physical expulsion or exclusion of the tenant, the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises" ( id. at 83 ). The tenant, however, must abandon possession in order to claim that there was a constructive eviction (id. ).
While "[a] constructive eviction does not require physical removal from the premises [it must be] demonstrate[d] that the lessee could not use the premises for the purpose(s) intended and had to abandon the premises under the circumstances" ( Herbert Paul, CPA v. 370 Lex, L.L.C. , 7 Misc 3d 747, 750 [Sup Ct, NY County 2005], citing Dinicu v. Groff Studios Corp. , 257 A.D.2d 218, 224 [1st Dept. 1999] ). Failure to plead this element is fatal to a constructive eviction claim ( Joon Song v. MHM Sponsors Co. , 176 A.D.3d 572, 573 [1st Dept. 2019] ["plaintiff's failure to plead that he actually abandoned the premises extinguished any claim of constructive eviction"]; Jackson v. Westminster House Owners Inc. , 24 A.D.3d 249, 250 [1st Dept. 2005] ["if the eviction is constructive, there must have been an abandonment of the premises by tenant"] ).
Defendants argue that since plaintiff has not alleged that she abandoned the premises, and as of the date of the motion continues to reside at the apartment, the constructive eviction claim must be dismissed. Plaintiff, in opposition, attempts to preserve the complaint by stating that defendants incorrectly label her claims as constructive eviction claims, contending that she is seeking damages arising from defendants' conduct which resulted in: a breach of plaintiff's right of quiet enjoyment and habitability and negation of plaintiff's right to renew the Lease; and "duping plaintiff into entering the Lease knowing that plaintiff's right to quiet enjoyment and habitability would be violated," a fraudulent inducement claim.
Plaintiff's right of quiet enjoyment claim falls within the same parameters as a constructive eviction cause of action; namely, plaintiff must allege that she was actually evicted or abandoned the premises, which, as discussed above, plaintiff has not alleged (Iken v. Bohemian Brethren Presbyt. Church , 162 A.D.3d 594, 595 [1st Dept. 2018] ; Schwartz v. Hotel Carlyle Owners Corp. , 132 A.D.3d 541, 542 [1st Dept. 2015] ["in actions for damages for breach of the covenant of quiet enjoyment, a tenant must show an ouster, or if the eviction is constructive, an abandonment of the premises"]. Therefore, this branch of plaintiff's complaint is dismissed.
To state a claim for breach of the warranty of habitability, a plaintiff must allege that "in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those essential functions which a residence is expected to provide" ( Park W. Mgmt. Corp. v. Mitchell , 47 N.Y.2d 316, 328 [1979] ). Plaintiff's allegations that defendants engaged in loud and intrusive drilling on the roof of the building for several months are sufficient at the pleading stage to state a claim for breach of the warranty of habitability (see Wortman v. Solil Mgmt. Corp. , 217 A.D.2d 466, 466 [1st Dept. 1995] ; accord Nostrand Gardens Co-Op v. Howard , 221 A.D.2d 637, 638 [2d Dept. 1995] ).
Finally, "to state a claim for fraudulent inducement, ‘there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury’ " ( Wyle Inc. v. ITT Corp. , 130 A.D.3d 438, 438-439 [1st Dept. 2015], quoting GoSmile, Inc. v. Levine , 81 A.D.3d 77, 81 [1st Dept. 2010] ). The damages plaintiff alleges from the fraud must be separate from the damages recoverable for breach of a contract ( Mañas v. VMS Assoc. , LLC, 53 A.D.3d 451, 454 [1st Dep't 2008] ). In addition, CPLR 3016 (b) states that, "[w]here a cause of action or defense is based upon misrepresentation [or] fraud ..., the circumstances constituting the wrong shall be stated in detail."
Plaintiff alleges that she was advised by defendants' exclusive broker that a roof project had been completed and that the apartment was quiet and plaintiff would not hear any noises; but one month after moving into the apartment, she began to hear drilling on the roof, which continued for four months. Plaintiff, however, fails to allege any facts that this alleged misrepresentation was made by or directed at the behest of either defendant. Further, plaintiff has not alleged a specific injury. Taking her allegations as true, plaintiff fails to state a claim for fraudulent inducement.
Accordingly, it is
ORDERED that defendants' motion under CPLR 3211 to dismiss the claims against them is granted as to plaintiff's claims for constructive eviction, breach of the covenant of quiet enjoyment, and fraudulent inducement; and the motion to dismiss is denied as to plaintiff's claim for breach of the warranty of habitability; and it is further
ORDERED that as the parties shall confer and prepare a joint request for a preliminary conference with this court, as set forth in the Remote Conference Protocol available on this court's website, http://ww2.nycourts.gov/courts/1jd/supctmanh/index.shtml.