Opinion
5414 Index 650244/15
01-09-2018
The SEGAL COMPANY (EASTERN STATES), INC., Plaintiff–Appellant, v. 333W34 SLG OWNER LLC, Defendant–Respondent, ARC NY333W3401, LLC, et al., Defendants.
Zukerman Gore Brandeis & Crossman, LLP, New York (Ted Poretz of counsel), for appellant. Stempel Bennett Claman & Hochberg, P.C., New York (Richard L. Claman of counsel), for respondent.
Zukerman Gore Brandeis & Crossman, LLP, New York (Ted Poretz of counsel), for appellant.
Stempel Bennett Claman & Hochberg, P.C., New York (Richard L. Claman of counsel), for respondent.
Tom, J.P., Kapnick, Webber, Oing, JJ.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 27, 2017, which, to the extent appealed from as limited by the briefs, dismissed the first cause of action of the second amended complaint, unanimously affirmed, with costs.
In May 2016, the court dismissed the causes of action asserted in the complaint and first amended complaint regarding tax escalation, but gave plaintiff leave to replead a claim for breach of the implied covenant of good faith and fair dealing, with specific instructions (cf. Sheppard v. Coopers', Inc., 13 Misc.2d 862, 865, 156 N.Y.S.2d 391 [Sup. Ct., N.Y. County 1956], affd 3 A.D.2d 909, 163 N.Y.S.2d 941 [1st Dept. 1957] ). Plaintiff filed a notice of appeal from the 2016 order but failed to perfect its appeal.
The second amended complaint fails to comply with the directions in the 2016 order; therefore, the court properly dismissed the cause of action for breach of the implied covenant of good faith and fair dealing (see Sheppard v. Coopers', Inc., 14 Misc.2d 180, 181, 181 N.Y.S.2d 709 [Sup. Ct., N.Y. County 1957], appeal dismissed 7 A.D.2d 971, 186 N.Y.S.2d 214 [1st Dept. 1959], and 14 Misc.2d 211, 213, 178 N.Y.S.2d 688 [Sup. Ct., N.Y. County 1958] ).