Koeningsberger v 200 Fifth Ave. Owner, LLC

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Koeningsberger v 200 Fifth Ave. Owner, LLC 2011 NY Slip Op 33381(U) December 13, 2011 Sup Ct, NY County Docket Number: 104327/10 Judge: Richard F. Braun Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON I212212011 - 1 Index Number 104327/2010 , KOENINGSBERGER, DEBORAH, efa_l. - vs 200 FIFTH AVENUE OWNER, LLC \ eEd / ' SEQUENCE NUMBER 002 2 ' 0 MOTION SEQ. NO. MOTION CAL. NO. DlSM ACTION/INCONVENIENT FORUM this motion t o k I .. - MOTION DATE @ I v1 INDEX NO. PAPERS ,NUnr(BERED Replying Affidavits Crobwotion: 1 u Yes @ NO o w FIL ¬D 16 m 1 Q vrI U v w v) v) a I I 1 I NEW YORK 0 1 0 F E Dated: I [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 23 _ _ - - _ - - _ _ - _ l - _ - _ l _ - ~ - - - - - - - - - - - - - - - - DEBORAH KOENINGSBERGER and NOIR ET BLANC BTS, INC., Plaintiffs, - - - - X Index No. 104327/10 OPINXQN against- 200 FIFTH AVENUE OWNER, LLC, L&L HOLDING COMPANY, LLC, DAVID BEFXEY, KEVIN FALLON, and MITOFSKY SHAPIRO NEVILLE & HAZEN LLP, FILED DEC 16 2011 This is an action for defamation, illegal eviction, negligence, intentional infliction of mental and emotional distress and harassment, and tortious interference with plaintiffs contractual and business relationships. Defendant Mitofsky Shapiro Neville & Hazen LLP (MSNH) moves to dismiss plaintiffs complaint, pursuant to CPLR 32 1 1 (a) (1) and (a) (7). Alternatively, MSNH moves to dismiss the complaint of plaintiff Deborah Koeningsberger (Koeningsberger), pursuant to CPLR 32 1 1 (a) (1) and (a) (7). Defendants 200 Fifth Avenue Owner, LLC (200 Fifth), L&L Holding Company, LLC (L&L), David Berkey (Berkey), and Kevin Fallon (Fallon) (defendants) move to dismiss plaintiffs second, third, fourth, and fifth causes of action, pursuant to CPLR 32 1 1 (a) (7). MSNH argues that plaintiffs served their opposition papers to its motion late. While this court did reject a sur-reply, MSNH did not indicate that it was prejudiced regarding the late submission of plaintiffs opposition papers (see Adler v Gordon, 243 AD2d 365 [la Dept 19971 [where the moving papers were not rejected by the Court, which noted that there was no prejudice to the motion s opponent]). Koeningsberger formed plaintiff Noir et Blanc Bis, Inc. (Noir) to conduct a high end boutique at 200 Fifth Avenue, New York, New York. Noir is a lessee of the ground floor and mezzanine of the subject premises. Noir entered a 10 year lease, dated May 23, 2002, ending April 20, 20 12. Defendant 200 Fifth [* 3] is the landlord and owner of the subject premises. Defendant L&L is the managing agent. Defendant Berkey is allegedly an agent of 200 Fifth, and defendant Fallon is a vice president and general counsel for defendant L&L. In December, 2008, plaintiffs complained that the heat was too high in the leased premises. Because of this condition, plaintiffs left the front door of the subject premises open. Two armed men entered the premises, and threatened to kill Noir's employee and Koeningsberger. The two men robbed the store. On a motion pursuant to CPLR 321 1 (a) (1) and (7), a complaint must be liberally construed, the factual allegations therein must be accepted as true, the plaintiff must be given the benefit of all favorable inferences therefrom, and the Court must decide only whether the facts alleged fall under any recognized legal theory (SukolofJv Harrirnan Estates Dev. Corp.,94 NY2d 409,414 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Wiener v Lazurd Freres & Co., 241 AD2d 114, 120 [Igt Dept 19981). To succeed on a CPLR 321 1 (a) (1) motion to dismiss, the documents upon which the movant relies must definitively dispose of the cause($) of action of the opposing party (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582,591 [2005]; Scolt v BellAtl. Corp., 282 AD2d 180, 183 [l"Dept 20011; Fischbach & Moore v Howell Co., 240 AD2d 157 [ 1Of Dept 19971). Only plaintiffs' second cause of action alleging an illegal eviction is asserted against MSNH. Based on documentary evidence, the lease agreement is between 200 Fifth and Noir only. MSNH asserts that only Noir was harmed, not Koeningsberger, with respect to the illegal eviction claim in plaintiffs' complaint. Koeningsberger does not allege personal harm to her by MSNH. As Koeningsberger is not the tenant ofthe subject premises, she lacks standing to bring a personal claim against MSNH for an illegal eviction based on the lease agreement (see Sociely of Plastics Industry, Inc. v Counry of Suffolk, 77 NY2d 761, 772-773 [ 19911). As MSNH contends, despite preliininary actions performed at the leased premises, an eviction did not take place, As to the second cause of action against defendants, the tenant was not deprived of either the beneficial enjoyment, or actual possession of the lease premises (see Barash v Pennsylvuniu Term. Real 2 [* 4] Estate Corp., 26 NY2d 77, 82-83 [ 19971). Accordingly, there was no actual eviction, as the actions did not continue to the point of an eviction, which was evidenced by the letter from the Marshal s office. Furthermore, there was no abandonment of the premises by Noir and thus no constructive eviction (Bar& v Pennsylvania Term. Real Estate Corp., 26 NY2d at 83). The claim of a wrongful eviction, pursuant to RPAPL 5 853, cannot stand. As to the third cause of action, defendants have shown that plaintiffs have not alleged facts that defendants allegedly providing excessive heat was the cause of the robbery. That was an independent intervening act, which caused the events to unfold as they did (see Derdiarian v Felix Conlr. Corp., 5 1 NY2d 308,3 15 [ 19801) . It is not sufficient that defendants acts allegedly created the occasion for the robbery to occur (see D Avilar v Folks Elec. h c . (67 AD3d 472 [ I Dept 20091). As to the fourth cause of action, defendants have shown that plaintiffs do not allege facts sufficient to establish the elements of a claim of intentional infliction of emotional distress. As defendants note, it is extremely difficult to pass the L ~ ~ t r a g e ~ test (see ~ ~ v Counly ofNassau, 71 AD3d 573, 574 [ 1 ~ ~ n e Stella Dept 2010l). Plaintiffs allegations do not rise to the level of outrage required for a causa of action for intentional infliction of emotional distress (see Mnrmelstein v KehiIIat New Hempstead: The Rav AronJofen Community Synagogue, 1 1 NY3d 15,22-23 [2008]; Howell v New York Post Co., 81 NY2d 115, 121-122 [ 19931; c j Green v Fischbein Olivieri Rozenholc & Badillo, 1 19 AD2d 345,350-351 [l Dept 19861[where the action was founded upon the allegedly baseless eviction proceedings and other actions brought against plaintiff over a period of several years. ]). Further, as stated in Edelstein v Farber (27 AD3d 202 [ lstDept 2006]), New York does not recognize a common-law cause of action for harassment (see Hartman v 536/540 E. 5th 3.Equities, Inc., I9 AD3d 240 [2005]). As to the fifth cause of action, defendants have shown that plaintiffs do not allege facts sufficient to establish the elements of a claim of tortious interference with contract and business relations (see Cawel Corp. v Noonan, 3 NY3d 182, 189- 19I [2004]; Snyder v Sony Music Entertainment, 252 AD2d 294,299-300 3 [* 5] [ latDept 19991). Plaintiffs complaint does not identify a specific contract that was breached (see White Plains Coal &Apron Co., Inc. v Cintus Corp., 8 NY3d 422,426 [2007]). Defendants show that plaintiffs do not allege independent tortious conduct by defendant Fallon in relation to the second, third, fourth, and fifth causes of action. Absent such allegations, there can be no personal liability as to him (see DeCastro v Bhokuri, 201 AD2d 3 82,3 83 [ 1 Dept 19941). The same is true as to defendant Berkey, an alleged agent of a disclosed principal. Berkey would not be personally liable unless there is clear evidence that he intended to substitute or superadd his personal liability for that of his principal (see Performance Comercial Importadora E Exportadora Ltda v Sewa Intl. Fashions Pvt. Ltd. ,79 AD3d 673 [ 1rt Dept 20 1 01). Therefore, by separate decisions and orders, both dated December 9, 201 1, MSNH s motion was granted to the extent of dismissing the plaintiffs complaint against MSNH, and defendants motion was granted to the extent of dismissing the second, third, fourth and fifth causes of action in plaintiffs complaint. The remaining cause of action is severed and shall continue. Dated: New York, New York December 13,201 1 RICHARD F. BRAUN, J.S.C. 4

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