Eden Roc, LLLP v Marriott Intl., Inc.

Eden Roc, LLLP v Marriott Intl., Inc. 2014 NY Slip Op 02498 Decided on April 10, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 10, 2014
Gonzalez, P.J., Acosta, Saxe, Richter, Manzanet-Daniels, JJ.
12188 651027/12

[*1]Eden Roc, LLLP, Plaintiff-Appellant, -—

v

Marriott International, Inc., et al., Defendants-Respondents.




Pryor Cashman LLP, New York (Todd E. Soloway of counsel),
for appellant.
Venable LLP, New York (David N. Cinotti of counsel), for
respondents.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered September 24, 2013, which, to the extent appealed from, granted the portion of defendants' motion to dismiss the complaint seeking dismissal of the twelfth cause of action for trespass, unanimously affirmed, without costs.

Plaintiff-hotel owner's cause of action for trespass was properly dismissed since it is not based on any tort obligation that was "apart from and independent of" defendants hotel managers' obligation under the management agreement to peacefully vacate and surrender the hotel by the effective date of termination of the agreement (New York Univ. v Continental Ins. Co., 87 NY2d 308, 316 [1995]; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 390 [1987]). The trespass claim is also duplicative of the breach of contract claims since it is founded on the same allegations that form the basis of the claims for breach of contract (see Wildenstein v 5H & Co., 97 AD3d 488, 492
[1st Dept 2012]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 10, 2014

CLERK