Opinion
July 3, 1997
Appeal from the Supreme Court, New York County (Jane Solomon, J.).
Plaintiff, an attorney, entered into a commercial lease with defendant landlord, a not-for-profit corporation, for a storefront that plaintiff planned to use for his law practice. Under the lease the landlord was to perform any necessary structural repairs, otherwise plaintiff accepted the premises "as is". Plaintiff, upon beginning renovations, discovered that some of the floor joists had rotted and notified the individual defendants, officers and directors of the landlord, and the other corporate defendant, the landlord's managing agent. The first cause of action for breach of the lease based on defendants' failure to make the necessary structural repairs was properly dismissed as to all defendants except the landlord, the only other party to the lease, for failure to allege specifically fraud or other misconduct or that the individuals in question conducted business in their personal rather than their corporate capacities ( see, Feigen v. Advance Capital Mgt. Corp., 150 A.D.2d 281, 282-283, lv denied 74 N.Y.2d 874). The second cause of action purportedly for tortious interference with a number of plaintiff's contracts with entities such as Con Edison and New York Telephone was properly dismissed, the impairment to these contracts claimed by plaintiff being merely an incident of the alleged breach of the lease ( see, EDP Hosp. Computer Sys. v Bronx-Lebanon Hosp. Ctr., 212 A.D.2d 570). The seventh cause of action for fraud was properly dismissed as the allegations that defendants failed to keep promises made prior to the execution of the lease relate to the breach of contract claim ( see, Delta Dallas Omega Corp. v. Wair Assocs., 189 A.D.2d 701). Moreover, the record demonstrates that plaintiff viewed the premises prior to signing the lease and knew that the storefront needed renovations. The eighth cause of action alleging nuisance was properly dismissed on the ground that the placement of the garbage cans in question does not constitute a substantial unreasonable interference with plaintiff's property rights under the lease ( cf., Langan v. Bellinger, 203 A.D.2d 857). Given the long period of time since the hearing before the JHO on plaintiff's motion to hold defendants in contempt, the JHO is hereby directed to issue his report, with due consideration of the dismissal of the complaint as against all but the landlord, forthwith, not later than 30 days from the date of this order.
Concur — Rosenberger, J. P., Nardelli, Rubin, Williams and Mazzarelli, JJ.