Xenopoulos v. Bd. of Managers of the 150 E

Full title: KLEANTHI XENOPOULOS, Appellant, v. BOARD OF MANAGERS OF THE 150 EAST 56TH…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 28, 1995

221 A.D.2d 257 (N.Y. App. Div. 1995)

633 N.Y.S.2d 790

Opinion

November 28, 1995

Appeal from the Supreme Court, New York County (Walter Schackman, J.).

The trial court properly granted defendants' motion to dismiss at the conclusion of plaintiff's case since plaintiff failed to establish a prima facie case of either fraud or breach of contract ( see, Rhabb v New York City Hous. Auth., 41 N.Y.2d 200, 202). The use of the unit purchased by plaintiff is governed by the condominium offering plan which specifically permitted only residential or professional office use. Plaintiff could not justifiably rely on alleged oral representations to the contrary, that the premises could be used for commercial purposes. Nor did the evidence establish that defendants agreed to take any steps to legalize the commercial use of plaintiff's unit. The complaint was also properly dismissed because plaintiff failed to offer sufficient evidence of damages, omitting any evidence as to the difference between the consideration paid and the value of the unit as a professional unit.

Concur — Murphy, P.J., Sullivan, Ross, Williams and Tom, JJ.