Opinion
No. 2861 Index No. 656255/17 No. 2023-05024
10-22-2024
James Koretz, Plaintiff-Appellant, v. 363 East 76th Street Corporation, Defendant-Respondent.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for appellant. Cullen and Dykman LLP, Uniondale (Michael B. Weiss of counsel), for respondent.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for appellant.
Cullen and Dykman LLP, Uniondale (Michael B. Weiss of counsel), for respondent.
Before: Webber, J.P., Friedman, Mendez, Shulman, O'Neill Levy, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about June 22, 2023, which, to the extent appealed as limited by the briefs, denied plaintiff's motion for summary judgment on his first and fourth claims for breach of contract and declaratory relief as to his rights under the parties' proprietary lease and supplement, and granted defendant's cross-motion for summary judgment dismissing the first and fourth claims, unanimously affirmed, without costs.
This Court previously determined that the scope of plaintiff's right to use the yard leading to the separate entrance to his dental office on the first floor of defendant-cooperative's building was ambiguous under the terms of the supplement to the proprietary lease between the parties and warranted resort to extrinsic evidence to resolve the dispute (Koretz v 363 E. 76th St. Corp., 178 A.D.3d 445 [1st Dept 2019]). Following discovery, in determining plaintiff's motion and the cooperative's cross-motion for summary judgment under CPLR 3212 on plaintiff's breach of contract and declaratory judgment claims, the motion court properly concluded that the extrinsic evidence established that the parties intended to permit plaintiff to have exclusive use of the entrance but not the surrounding land, including the location of the disputed ramp (see e.g. Fairmont Tenants Corp. v Braff, 162 A.D.3d 442, 442 [1st Dept 2018] [extrinsic evidence properly considered to conclude there was "no outdoor space allocated exclusively to defendants' apartment"]).
Contrary to plaintiff's contention, the motion court correctly determined that this was consonant with the use of the word "entrance" in the cooperative's appraisal report for the professional apartment to mean "doorway" rather than the entire pathway through the courtyard (see Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 60 A.D.3d 61, 66 [1st Dept 2008], affd 13 N.Y.3d 398 [2009]; compare Prospect Owners Corp. v Sandmeyer, 62 A.D.3d 601, 603 [1st Dept 2009]). Accordingly, we agree with the motion court that none of the extrinsic evidence reflected any intention to expand plaintiff's rights beyond use of the side entrance.
Furthermore, the claim for declaratory relief was properly dismissed since it "is essentially duplicative of the contract claim...and [thus,] there is no need for a declaration in defendant's favor" (KNIC LLC v New York City Economic Dev. Corp., 198 A.D.3d 481, 482 [1st Dept 2021]).
We have considered plaintiff's remaining contentions and find them unavailing.