Opinion
10177N 10177NA Index 657460/17
10-22-2019
Dr. JOON SONG, Plaintiff–Appellant, v. MHM SPONSORS CO., et al., Defendants–Respondents.
Desiderio, Kaufman & Metz, PC, New York (Massimo F. D'Angelo of counsel), for appellant. Cullen & Dykman LLP, Garden City (Ryan Soebke of counsel), for MHM Sponsors Co., MHM Sponsors Inc., The Olnick Organization, Inc. and Denise Martorana, respondents. Braverman Greenspun P.C., New York (Maria Boboris and Tracy Peterson of counsel), for Chesapeake Owners Corp., Firstservice Residential New York, Inc., Joshua Friedman, Keith Allone and Roger Ancona, respondents.
Desiderio, Kaufman & Metz, PC, New York (Massimo F. D'Angelo of counsel), for appellant.
Cullen & Dykman LLP, Garden City (Ryan Soebke of counsel), for MHM Sponsors Co., MHM Sponsors Inc., The Olnick Organization, Inc. and Denise Martorana, respondents.
Braverman Greenspun P.C., New York (Maria Boboris and Tracy Peterson of counsel), for Chesapeake Owners Corp., Firstservice Residential New York, Inc., Joshua Friedman, Keith Allone and Roger Ancona, respondents.
Renwick, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Margaret Chan, J.), entered July 25, 2018, which granted defendants' motions to dismiss the complaint and denied plaintiff's cross motion to amend, and order, same court and Justice, entered July 30, 2018, which denied plaintiff's motion for a preliminary injunction, unanimously affirmed, without costs.
The motion court properly granted defendants' respective motions to dismiss the complaint and denied plaintiff's motion to amend as futile ( Okoli v. Paul Hastings LLP, 117 A.D.3d 539, 540, 985 N.Y.S.2d 556 [1st Dept. 2014] ). Plaintiff's failure to allege specific irreparable harm was fatal to his request for an injunction ( Weaver v. Essex Owners Corp., 235 A.D.2d 369, 370, 652 N.Y.S.2d 974 [1st Dept. 1997], lv dismissed in part, denied in part 89 N.Y.2d 1073, 659 N.Y.S.2d 851, 681 N.E.2d 1298 [1997] ). As for his substantive claims, plaintiff failed to state a cause of action for tortious interference with business relations because he did not substantiate how he was injured as a result of defendants' alleged interference ( Aramid Entertainment Fund Ltd. v. Wimbledon Fin. Master Fund, Ltd., 105 A.D.3d 682, 965 N.Y.S.2d 26 [1st Dept. 2013], lv denied 22 N.Y.3d 858, 981 N.Y.S.2d 368, 4 N.E.3d 380 [2013] ). Likewise, plaintiff's claim for civil assault based on screaming, threats, and having a door slammed in his face failed to allege facts that would establish that physical contact was reasonably imminent ( Holtz v. Wildenstein & Co., 261 A.D.2d 336, 693 N.Y.S.2d 516 [1st Dept. 1999] ). Defendants correctly assert that plaintiff abandoned his breach of the covenant of quiet enjoyment claims (see Carey & Assoc. LLC v. 521 Fifth Ave. Partners, LLC, 130 A.D.3d 469, 470, 13 N.Y.S.3d 387 [1st Dept. 2015] ), and we decline to reach the issue. Were we to reach it, we would agree with the motion court that plaintiff's failure to plead that he actually abandoned the premises extinguished any claim of constructive eviction ( 127 Rest. Corp. v. Rose Realty Group, LLC, 19 A.D.3d 172, 173, 798 N.Y.S.2d 387 [1st Dept. 2005] ). As for a determination that the lease was void, based on a lack of corporate filings, we agree with the motion court that this allegation, standing alone, fails to state a claim.
We have considered the remaining contentions, and find them unavailing.