Opinion
14794 Index No. 21078/14E 43124/19E Case No. 2020-04389
12-07-2021
MD3, INC., Plaintiff–Appellant, v. Jacob SELECHNIK doing business as 1110 Wyatt LLC, et al., Defendants–Respondents. [And a Third-Party Action]
Paskoff & Tamber, LLP, New York (Adam Paskoff of counsel), for appellant. Kaufman Borgeest & Ryan LLP, Valhalla (David Bloom of counsel), for respondents.
Paskoff & Tamber, LLP, New York (Adam Paskoff of counsel), for appellant.
Kaufman Borgeest & Ryan LLP, Valhalla (David Bloom of counsel), for respondents.
Acosta, P.J., Gische, Webber, Friedman, Kennedy, JJ.
Order, Supreme Court, Bronx County (Rube´n Franco, J.), entered on or about October 5, 2020, which, insofar as appealed from, granted defendants’ motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny defendant's motion with respect to the second amended complaint's sixth, seventh, and eighth causes of action (all for breach of contract), and ninth, tenth, and eleventh causes of action (all for tortious interference with contract), and reinstate those causes of action only with respect to the purported March 2013 contract to sell the business and assign the lease to Joseph Urgo, and otherwise affirmed, without costs.
The court correctly dismissed plaintiff tenant's first, second, third, fourth, and fifth causes of action, all of which were for breach of contract, and plaintiff's twelfth, thirteenth, and fourteenth causes of action, all of which sought a declaratory judgment for partial actual eviction. Plaintiff's withholding of the rent and fee owed under the lease for the commercial space and advertising sign constituted an election of remedies, precluding its claim for other damages related to the alleged breach of lease and eviction (see Schwartz v. Hotel Carlyle Owners Corp., 132 A.D.3d 541, 543, 20 N.Y.S.3d 341 [1st Dept. 2015] ; Bostany v. Trump Org. LLC, 88 A.D.3d 553, 554, 931 N.Y.S.2d 280 [1st Dept. 2011] ). These causes of action were also properly dismissed because plaintiff lacks any concrete evidence showing business losses related to the removal of its advertising sign. Furthermore, because the declaratory judgment claims here are essentially duplicative of the contract claims, dismissal rather than a declaration in defendants’ favor is the proper course (see KNIC LLC v. New York City Economic Dev. Corp., 198 A.D.3d 481, 156 N.Y.S.3d 156 [1st Dept. 2021] ).
Plaintiff's sixth, seventh, and eighth causes of action (for breach of contract), and ninth, tenth, and eleventh causes of action (for tortious interference with contract) are reinstated, but only with respect to the purported contract between plaintiff and Joseph Urgo regarding an assignment of the lease to Urgo and a potential sale to Urgo of plaintiff's business. The record shows that triable issues of fact exist as to these causes of action, as the testimony offered by plaintiff adequately alleges that such a contract existed and that defendants sought to interfere with it.
We have considered plaintiff's other contentions and find them unavailing.