Wood v 139 East 33rd St. Corp.

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Wood v 139 East 33rd St. Corp. 2012 NY Slip Op 30757(U) March 23, 2012 Sup Ct, New York County Docket Number: 602793/09 Judge: Louis B. York 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. NNED ON 312712012 [* 1] SUPREME COURT O F THE STATE OF NEW YORK NEW YORK COUNTY :*(::- - ' i>; L .r, ,B PRESENT: PART ,'i (' & Justice d U 2 , 7 4 MOTIONDATE 3/ INDEX NO. ' MOTION SEP.NO. The followlng papers, numbered Ito , were read on this motion tolfor Notice of MotlonlOrder to Show Cause - Affldavits Answering Affldavlts - Exhlblts INo@). IW 5 ) . - Exhiblts I No(s1. Replying Aftidavlts Upon the foregoing papers, It is ordered that this motion is I3IEW YOHK COlJNSY CLEHKS OFFICE t ; ' , Dated: 3 I. CHECK ONE: ..................................................................... ........................... MOTION I S : ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: n CASE DISPOSED uGRANTED CIDENIED 0DO NOT POST ON-FINAL DISPOSITION @GRANTED IN PART OTHER [y SUBMIT ORDER fl FIDUCIARY APPOINTMENT r']REFERENCE I [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY. .OF. .N.E .W. .YORK: . PART . 2 . . . . . . _ _ _ _ - _ . . . . . . . . . . . . . . . . . X CAROL WOOD, Plaintiff, Index No. : 602793/09 -against- DECISION Defendants. _____-_________ __ ____ _ _ _ _X judgment: (I) on her first, second, third, fifth and seventh causes of action; (2) dismissing defendants' first, second, third, fourth, fifth and sixth causes of action; (3) awarding her $1,200,000.00, or other such sum as the court determines, on each of her first, second, third and fifth causes of action, p l u s $10,600-00per month f r o m the time defendants caused her to stop her renovations until May 2010; a n d (4) awarding her legal fees on her seventh cause of action. Defendants 139 East 33rd Street Gorp. (Gorp.), the owner of the premises, a n d Douglas Elliman Property Management ( D o u g l a s Elliman), the building's managing agent, cross-move, pursuant t.o CPLR 3212, f o r surrunary judgment dismissing all of plaintiff's claims and granting them summary judgment on their first, second, 1 [* 3] third and fourth counterclaims. BACKGROUND Plaintiff is the tenant-shareholder of a cooperative apartment owned by the Corp. and managed by Douglas Elliman. Plaintiff sought to renovate her apartment, and initially obtained defendants approval after submission of her p l a n s and specifications to Douglas Elliman and Douglas Elliman s architect. After the renovation had commenced, at some considerable expense to plaintiff, defendants stopped further construction, allegedly because the p l a n n e d dropped ceiling would decrease the distance between the ceiling and the floor to less than eight feet, which would be a violation of the New York City Building Code. This court initially granted plaintiff a preliminary injunction, enjoining defendants from interfering with the renovation of the apartment. That preliminary injunction required the renovation to adhere to the Building Code, especially with respect to the height requirements between the floor arid the ceiling. Subsequently, an evidentiary hearing was held, which indicated that even though the drop ceiling only reduced the distance between the ceiling and the floor by little more than one inch, the distance was less than eight feet. However, expert tesLimony established that the distance between t-he ceiling and the floor, in its original state, was less than 2 [* 4] eight feet and, consequently, it was impossible f o r plaintiff to adhere to the eight-foot requirement of the Building Code. The complaint alleges seven causes of action: (1) breach of contract; (2) breach of fiduciary duty; (3) breach of the implied covenant of good faith and fair dealj-ng; (4) declaratory judgment and injunction; (5) breach of contract/frustration of purpose; (6) Fair Housing discrimination (plaintiff is allegedly hearing impaired); and (7) attorney's f e e s . Motion, Ex. A . In their amended answer, defendants a s s e r t seven counterclaims: (I) contractual indemnification; (2) attorney's fees; (3) breach of contract/alteration agreement; (4) breach of contract/lease; (5) promissory estoppel; and (6) permanent injunction. Motion, Ex. B. The cross motion o n l y concerns the first four counterclaims, the last two s t i l l remaining as part of this litigation. Plaintiff asserts that, during the period in which the apartment was torn up in order to perform the renovations arid work was stopped by defendants, she needed a place to live and was forced to move to C a l i f o r n i a to reside with her mother. Defendants stopped work on the apartmenL on November 8, 2008, arid this court enjoined defendants from continuing the work stoppage on October 16, 2009. According to the section 21 (a) of the proprietary lease: The Lessee shall n o t , without: fi.rst obtairling the written consent of the Lessor, which consent shall not 3 [* 5] be unreasonably withheld, m a k e in the apartment or building, or on any roof, terrace or balcony appurtenant thereto, any alteration, enclosure or addition or any alteration of or addition to t h e water, gas, or steam risers or pipes, heating or air conditioning system or units, electrical conduits, wiring or outlets, plumbing fixtures, intercommunication or alarm system, or any other installation or facility in the apartment or building. The performance by Lessee of any work in the apartment shall be in accordance with a n y applicable rules and regulations of the Lessor and governmental agencies having jurisdiction thereof. The Lessee shall not in any case install any appliances which will overload the existing wires or equipment in the building. (Cross Motion, Ex. 1.) According to the pertinent provisions of the alteration agreement entered into by the parties: [Defendants had the right,] from time to time, if in the Corporation s judgment due to the scope o f the project, to observe the work to insure that all w o r k conforms to plans and specifications previously approved, and that no conditions have been created which . . . is in violation of laws, rules, orders or regulations of any governmental agency having jurisdiction. You, the Shareholder agree to indemnify and hold harmless the Corporation, the Corporation s architect or engineer, the Managing Agent, and other shareholders and residents of the Building against any damages s u f f e r e d to persons or property as a result of the Work, whether or not caused by negligence, and for any and all liabilities arising there from [sic] or incurred in connection therewith. Yo11 shall reimburse the Corporation, the Corporation s - a r c h i t - e c t or engineer, Managing Agent, and other shareholders and residents of the Building for any losses, costs, fi-nes, fees and expenses (including, without limitation, reasonable attorney fees and disbursements) incurred as a result of the Work. .. Parquet floors ar-e to be replaced with wood of the same thickness and of the same quality as originally installed. 4 [* 6] All work shall be performed strictly in accordance with the approved plans and specifications. You agree that n o changes of any kind t o the approved p l a n s and specifications s h a l l be made without the written approval of the Corporation. If any work other than as described herein is performed, the Corporation reserves the right to stop all work until the situation is resolved to t h e Corporation s satisfaction. (Cross Motion, Ex. 2.) The alteration agreement a l s o stated a start and finish d a t e for the project. Plaintiff contends that defendants breached the alteration agreement: (1) by c a u s i n g the renovation work to stop even though the renovations were being performed in accordance with the approved plans; (2) by wilfully failing to maintain due diligence w i t h respect to record-keeping requirements; (3) by demonstrating a breach of fiduciary duty and lack of good faith; and (4) by causing her to become homeless by stopping work on her apartment. Law, although she maintains that she was discriminated against because of her impaired hearing. All of plaintiff s arguments regarding h e r claim for summary judgment on h e r first, second, third, and fifth causes of action revolve around defendants stopping her renovation work for 5 [* 7] [* 8] written approval. In opposition to plaintiff s motion arid in support of their cross motion, defendants state that plaintiff was informed of tile reason why work was stopped and was told that she would have to submit a revised plan and specifications in order to restart the work. Further, defendants say that plaintiff was told that, if she had any issues with the stoppage, she could contact the Corp. s board directly; however, a c c o r d j . n g to defendants, plaintiff did nothing to facilitate the restarting of the renovations until almost a year later when she initiated the these two requirements. Defendants point out that, in her argument, plaintiff does not dispute that she breached the agreements, but simply asserts that her breaches were minor breaches, whereas the alleged breaches by defendants were material. Moreover, plaintiff fails to identify a single instance in which defendants actled oul-,side of their contractual rights. Further, although plaintiff claims that defendants engaged in aggressive physical and psycho].ogical persecution of her, s h e provides no evidence to support these 7 [* 9] allegations. Defendants say that plaintiff has failed to provide any evidence of a breach on the part of defendants and, consequently, h a s not met her prima facie burden of proof. According to defendants, plaintiff's first cause of action for breach of contract alleges that defendants breached the proprietary lease by unreasonably withholding or delaying c o n s e n t to her plans. Plaintiff's third cause of action, breach of the implied covenant of good faith and fair dealing, alleges the exact same w r o n q and, argue defendants, is duplicative of her first cause of action. Similarly, defendants say that plaintiff's fifth cause of action, breach of contract by frustration of purpose, is a l s o based on defendants reversal of their approval of her renovation plans and is, therefore, duplicative of her first cause of a c t i o n and, moreover, is l e g a l l y unsound, since the doctrine of frustration of purpose requires an unforseen event. Defendants maintain that plaintiff's arguments regarding their alleged breach of plaintiff's covenant of quiet enjoyment was never p a r t of the complaint and should be disregarded, being brought up f o r the first time in h e r instant motion. Defendants state that they never o u s t e d plaintiff from h e r apartment, but it is plaintiff who is responsible for failing to submit a revised p l a n so that her work c o u l d continue. 8 [* 10] In support of their cross motion, defendants aver that t-here is no question that plaintiff breached the agreements and, hence, they are entitled to summary judgment on their counterclaims f o r breach of the alteration agreement and proprietary lease. As part of her renovation of the ceiling, plaintiff drilled into the ceiling, which was not part of her approved plan. This was observed by both Robert Halabov (Halabov), Douglas Elliman s accountant, and Ramsammy Subramonie (Subramonie), the building s superintendent (Cross Motion, affidavits of Halabov and Subramonie), and that this was n o t part of the approved plan was confirmed by Elliott Glass (Glass) a registered architect ( C r o s s Motion, Glass Aff.). Moreover, contrary to plaintiff s position, defendants s a y that they did not withdraw consent by stoppirig the work, b u t merely asserted their contractual rights. Defendants also contend that the Corp. s decision to stop plaintiff s w o r k i.s protected by the business judgment rule and, regardless, there j,s no evidence that the Corp. acted improperly or in any way other than the building s best interests. Defendants argue that plaintiff s second cause of action forbreach of fiduciary duty must be dismissed because the parties relationship is a contractual one, tie C o r p . acted in the best interests of the c o o p e r a t i v e at large, a n d the Cor-p. is not a fiduciary: its officers and directors are. Defendants a l s o aver that plainti.ff s sixth c a u s e of act-ion, 4 [* 11] alleging F a i r H o u s i n g Law d i s c r i m i n a t i o n , m u s t be d i s m i s s e d because p l a i n t i f f h a s n o t p o i n t e d t o a s i n g l e i n s t a n c e o f h e r b e i n g s i n g l e d out. b a s e d o n h e r alleged d i s a b i l i t y . Lastly, d e f e n d a n t s s t a t e t h a t bot-h t h e p r o p r i e t a r y l e a s e and t h e a l t e r a t i , o n agreement p r o v i d e f o r t h e i r i n d e m n i f i c a t i o n and r e c o v e r y o f a t t o r n e y ' s f e e s a n d costs. I n opposition t o defendants' cross motion, p l a i n t i f f m a i n t a i n s t h a t t h e p l a n s a r e s i l e n t o n t h e i s s u e o f inserting s t u d s i n t o t h e ceiling, o n e of d e f e n d a n t s ' a c c u s a t i o n s of p l a i n t i f f ' s b r e a c h of t h e a l t e r a t i o n a g r e e m e n t , a n d , t h e r e f o r e , s u c h a c t i o n o n the p a r t o f p l a i n t i f f c a n n o t be c o n s t r u e d a s a breach of t h e agreement. Further, p l a i n t i f f asserts t h a t "dispute abounds, moreover, have b r e a c h e d , Memo, a t 5 . ) a s t o w h a t e x a c t l y Wood i s a l l e g e d t o not t o m e n t i o n w h a t e x a c t l y h a p p e n e d . " (Reply The court notes t h a t p l a i n t i f f f a i l s t o provide any e v i d e n c e of t h e e x a c t n a t u r e o f t h e d i s p u t e with r e s p e c t t o her a l l e g e d b r e a c h e s , but f o c u s e s on w h a t s h e claims a r e d e f e n d a n t s ' breaches. P l a i n t i f f argues t h a t defendants did not adhere t o t h e i r mutual o b l i g a t i o n s u n d e r t h e a l t e r a t i o n a g r e e m e n t b y f a i l i n g t o a c t i n a r e a s o n a b l e manner, u n i - l a t e r a l l y d e t e r m i n i n g t h a t p l a i n t i f f w a s i n d e f a u l t , and f a i l i n g t o p r o v i d e p l a i n t i f f w i t h a n y n o t i c e o f d e f a u l t a n d a p e r i o d o f t i m e i.n w h i c h to c u r e t h e default. [* 12] Plaintiff further claims that defendants a r e not shielded by the business judgment rule because defendants actions were unreasonable. Plaintiff agrees with defendants that s h e cannot maintain a cause of action based on a breach of fiduciary duty against the Corp., but she maintains that Halabov breached such a duty while acting as t h e a g e n t f o r t h e corporate principal, rendering Douglas Elliman liable for t h o s e acti-ons. According to plaintiff, Halabov s fiduciary breaches consisted of: (1) approving cork floori.ng without authority to do so; (2) withholding notification to plaintiff after the work stoppage; (3) refusing to supply a written explanation to plaintiff; (4) communicating to plaintiff s contractor directly; ( 5 ) b a r r i n g access to plaintiff s lawyer; (6) attempting to elicit illegal f e e s from plaintiff in order to allow work to continue; and (7) impeding plaintiff s attempts to implement accornmodations necessitated by plaintiff s hearing impediment. Plaintiff contends that Halabov p l a c e d himself in the position of her fiduciary. As such, plaintiff s a y s that Douglas Elliman is liable for the unlawful and vicious acts committed by Halabov. ( R e p l y Memo, at 18.) Plaintiff also s t a t e s that defendants violated the Fair Housing Act by not allowing h e r to make reasonable accommodations in her apartment to accommodate her hearing p r o b l e m s . 11 Plaintiff [* 13] maintains that she suffers from an inability to hear except for elevated input levels, and states that s h e needs t.o perform renovations to the ceiling because of the high level of noise caused by the roo.Etop fan, located above her apartment. Lastly, plaintiff reiterates her argument that she was constructively evicted from her apartment when defendants caused work to be stopped at a point when the unit was torn up for the renovations and uninhabitable. In reply, defendants point to the portion of Halabov's deposition in which he avers that the renovation work performed by plaintiff prior to the work stoppage caused damage to the building and that plaintiff performed invasive chiseling, drilling or penetration to the ceiling slab. 113-115. H a l a b o v EET, at Further, Halabov states that plaintiff was to1.d that she would have to submit revised plans to the board b e c a u s e of the work being performed on her ceiling, which she failed to do, which, claim defendants, satisfies any lack of notice alleged by plaintiff. Defendants claim that plaintiff's frivolous actions, making several misstatements of facts and law, allow the c o u r t to award them c0st.s and/or sanctions. Defendants state that plaintiff has not met her burden of proof because she has failed to support any of h e r c:ont.eritions with admissible evidence. Defendants say that plaintiff's 12 [* 14] arguments consist of t h e rambling legal memoranda of her attorney and her own conclusory statements, which are unsupported by any actual facts. Defendants point o u t that. plaintiff was already in California for one month prior to the work stoppage and stayed there for over eighteen months thereafter, rendering her argument about constructive eviction and ouster factually implausible. Motion, Ex. C. Moreover, since plaintiff was away, she can have no personal knowledge of the conditions in her apartment during her absence, and her affidavits in support of her motion indicate that she is relying on w h a t other persons told her. Defendants argue that the physician's letter annexed to plaintiff's motion as proof of her disability is inadmissible hearsay, not in the form of an affirmation. Moreover, defendants state that plaintiff has failed to produce any evidence in admissible form as to her alleged disability or the condition of the operation of the rooftop fan. Defendants further state t h a t there is no allegation t h a t the Corp. withheld its approval of plaintiff's renovation plans, and the alteration agreement gave them the right to stop work if the actual renovations did not comport with the plans provided f o r that approval. Hence, defendants s a y that plaintiff's allegation that they unreasonably withheld approval or unreasonably stopped work m u s t be dismissed. 13 [* 15] D e f e n d a n t s a v e r that p l a i n t i f f has f a i l e d t o c r e a t e an i s s u e o f m a t e r i a l f a c t w i t h r e s p e c t t o why w o r k was s t o p p e d . It. i s u n d i s p u t e d t h a t h o l e s w e r e d r i l l e d i n t o t h e c e i l i n g of p l a i n t i f f ' s a p a r t m e n t , a f a c t w h i c h p l a i n t i f f does n o t d i s p u t e , and t h a t t h e a p p r o v e d p l a n s s t a t e b o t h t h a t the new ceiling w o u l d be taped t u t h e exist-ing c e i l i n g and, i n accordance with t h e p r o p r i e t a r y l e a s e , would n o t i n v o l v e any s t r u c t u r a l changes. C r o s s M o t i o n , Exs. 3 , 4 and 5. D e f e n d a n t s c o n t e n d t h a t p l a i n t i f f ' s arguments, a p p e a r i n g f o r t h e f i r s t t i m e i n h e r r e p l y memorandum, r e g a r d i n g H a l a b o v ' s b r e a c h o f f i d u c i a r y duty, m u s t f a i l b e c a u s e p l a i . n t i f f has f a i l e d t o m a k e a n y s h o w i n g t h a t D o u g l a s E l l i m a n owes h e r a n y f i d u c i a r y obligations. Lastly, d e f e n d a n t s c l a i m t o be e n t i t l e d t o r e a s o n a b l e a t t o r n e y ' s f e e s b a s e d o n t h e p r o p r i e t a r y l e a s e , w h i c h was amended on J u n e 1 4 , 2 0 0 0 , t o allow t h e C o r p . t o r e c o v e r s u c h e x p e n s e s . . DISCUSSION " T h e p r o p o n e n t of a summary j u d g m e n t m o t i o n m u s t make a p r i m a f a c i e s h o w i n g o f e n t i t l e m e n t t o j u d g m e n t a s a m a t t e r of law, t e n d e r i n g s u f f i c i e n t e v i d e n c e t o e l i m i n a t e a n y m a t e r i a l i s s u e s of f a c t f r o m t h e case [ i n t e r n a l . q u o t a t i o n m a r k s and c i t a t i o n omitted] ." (l't Dept 2 0 0 6 ) . S a n t i a g o v F i l s t e i n , 35 A D 3 d 1 8 4 , 1 8 5 - 1 8 6 The b u r d e n t h e n s h i f t s t o t h e m o t i o n ' s o p p o n e n t t o " p r e s e n t e v i d e n t i a r y f a c t s in a d m i s s i b l e f o r m s u f f i c i e n t t o 14 [* 16] raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1" Dept 2006) ; s e e Z u c k e r m a ~ i v C i t y of N e w Yor-k, 49 NY2d 55'7, 562 (1980). If there is any d o u b t as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba E x t r u d e r s , Inc. v Ceppos, 46 NY2d 223, 231 (1978). That branch of plaintiff's motion seeking summary Judgment on her first cause of action for breach of contract (the proprietary lease) is denied, and defendants' cross motion seeking to dismiss plaintiff's first cause of a c t i o n is granted. The allegation in the complaint states that defendants unreasonably withheld or delayed corisent to allow plaintiff to complete the renovations to her apartment. To establish a breach of contract claim, plaintiff must prove the following elements: (1) the existence of an agreement; (2) performance by plaintiff; (3) breach by defendants; and (4) damages. Furia v F u r i a , 116 A D 2 d 694, 695 (2d Dept 1986). The facts presented evidence that defendants both reasonably and expeditiously granted plaintiff consent to renovate her apartment in accordance with the plans and specifications submitted. Plaintiff, despite all of the verbiage in her memoranda of law, never disputes or contradicts the evidence that the work that was being performed was not in accordance w i t h the submitted p l a n s . Regardless of the ceiling height, the plans 15 [* 17] specified that t - h e new ceiling would be taped to the existing ceiling, and that the work would be done in accordance with the proprietary lease, w h i c h prohibited structural changes. Moreover, plaintiff further deviated from the plains by removing the wood floors and replacing t h e m with cork, which a l s o violates the proprietary lease. The alteration agreement granted defendants the right to s t o p work if the renovations did not conform to t h e submitted plans, which is what they did. See S i e g l e v v 875 T e n a n t C o r p . , 2010 WL 2754072, 2010 NY Misc Lexis 3 0 1 2 , 2010 NY S l i p Op 31645(U) ( S u p Ct, NY County 2 0 1 0 ) . The decision by defendants to stop work on plaintiff s apartment because of potential structural changes to the building is well within the limits of the business judgment rule, which.shields them from liability absent any evidence of l a c k of good faith. Matter of Levandusky v @ne F i f t h Avenue Apar-tinei-it C o r p . , 75 N Y 2 d 530 (1990). Further, not o n l y h a s plaintiff failed to submit any evidence, aside from conclusory allegations, that defendants acted in b a d faith, it was plaintiff who c a u s e d any delay in the recommencement of t-he w o r k by not following defendants request to submit new plans and waiting over eleven months to seek judicial assistance, the oinly act taken by plaintiff to restart the work. This finding is in agreement with the Appellate Division s h o l d i n g in B r y a n t v O n e B e e k m a n Place, Inc. (73 A D 3 d 616 [1,jt 16 [* 18] Dept 2010]), wherein the tenant shareholder of a cooperative apartment was found to have breached the proprietary lease and the approved renovation plans, which enabled the cooperative board validly to issue a stop work order without being in breach of any of its contractual obligations. Therefore, the court finds that defendants did not breach the proprietary lease by stopping work that did not conform to the renovation plans submitted. That branch of p l , a i n t i f f ' s motion seeking summary judgment on h e r second cause of action for breach of fiduciary duty is denied and defendants' cross motion seeking to dismiss this cause of action is granted. Plaintiff has agreed that her breach of fiduciary duty c l a i m cannot be asserted directly against defendant corporations. Peacock v H e r a l d Square . L o f t C o r p . , 67 A D 3 d 442 (1"' Dept 2009) - F o r the first time, in her r e p l y and opposition to defendant.^' cross claim, plaintiff asserts that Douglas Elliman can be held vicariously liable for the actions of its agent. Arguments advanced for the first time in reply p a p e r s are entitled to no consideration by a court considering the merits of a dispositive motion. Meade v Rock-McGraw, Inc. , 3 0 7 A D 2 d 156 (1''.Dept 2003). In addition, aside from conclusory assertions, which are insufficient to defeat a motion for summary judgment ( R u i s i v F r a n k ' s Nurscry and C r a f t s , Inc., 272 AD2d 314 [2d Dept 2000]), 17 [* 19] plai.ntiff fails to present ally evidence that Halabov owed her a n y fiduciary obligations. Further, the breach o f fiduciary duty c l a i m merely duplicates the breach of contract claim a n d , therefore, is appropriately dismissed. Investment M a n n q e i n e n t , CMMF, L L C v J.P. Morgan Inc., 7 8 AD3d 562 ( l X t Dept 2010) Based on the foregoing, plaintiff's second cause of action is dismissed. That branch of plaintiff's motion seeking summary judgment faith and fair dealing is denied, a n d defendants' cross motion to dismiss this c a u s e of action is granted. "Implied in every contract is a covenant of good faith a n d fair dealing, which is breached when a party to a contract act-s in a manner that, although not expressly forbidden by any cont-ractual provision, would d e p r i v e the other party of the right to receive the benefits u n d e r the agreement. " J a f f e v P a r a m o u n t C o m m u n i c a t i o n s , 2 2 2 AD2d 17, 92-23 (1"'Dept 1996). However, a breach of the covenant of good faith and f a i r dealing is redundant of a breach of contract claim where it relies upon the same facts, which is the case in the instant matter. L o g a n Advisors, LLC v P a t r i a r c h P a r t n e r s , LLC, 6 3 AD3d 440 (1"" Dept 2009). That branch of plaintiff's motion seeking summary judgment of purpose is denied, and defendants' cross motion seeking to 18 [* 20] dismiss this cause of action is granted. The contract alluded to in the complaint, although not specified, is the alteration agreement. As previously discussed, that agreement granted defendants the right to stop work on the renovations if the work was not being performed in accordance with the submitted plans. There is no argument that the work was not being performed in accordance with the submitted plans, so that defendants could not have breached this agreement by asserting their contractual rights. If plaintiff d i d n o t wish defendants to have t h e unilateral right to make such determinations, she should have negotiated different contractual provisions, but the c o u r t can only construe contracts as written. G r e e n f i e l d v P h i l l e s R e c o r d s , 98 NY2d 562 (2002); W. W. W. Associates v G i a n c o n t i e r i , 7 7 N Y 2 d 157 (1990). Moreover, the doctrine of frustration of purpose, argued by plaintiff, refers to a situation in which "an unforseen event has occurred, which, in the context of the entire transaction, destroys the underlying reasons for performing the contract, even though performance is possible [citation omitted] . " Sage Realty C o r p . v O m n i c o m Group Inc., 183 Misc 2d 574 (Sup Ct, NY County 2 0 0 0 ) . This doctrine is appropriately invoked to excuse performance of a contractual obligation and is totally inapplicable to any allegation that defendants breached the contract. 19 [* 21] That portion of plaintiff's motion seeking summary judgment on her seventh cause of action for attorney's fees is denied, a n d defendants' cross motion seeking to dismiss this cause of action is granted. Plaintiff has provided no legal justification for this claim. That portion of defendants' cross motion seeking to dismiss plaintiff's fourth and sixth causes of action, for declaratory and injunctive relief and violation of the Fair Housing Act respectively, is granted. The court concludes that plaintiff has failed to meet her prima f a c i e burden of providing proof in admissible form that would entitle her to judgment as a matter of l a w , whereas defendants have provided such evidence to meet their burden to be entitled to the relief they seek to dismiss plaintiff's complaint. Therefore, plaintiff's motion is denied and that portion of defendants' cross motion seeking to dismiss plaintiff's complaint is granted. That portion of defendants' cross motion seeking summary judgment on their first counterclaim for indemnification is 20 [* 22] denied. Contrary to defendants' assertion that t h e indemnification provision of the alteration agreement quoted above entitles them to have plaintiff indemnify t h e m for all the costs of t h e i n s t a r i t . litigation (Cross Motion, Ex. B), t h a t is not what t h e provision provides. Pursuant to the terms of the alteration agreement, plaintitf has only agreed to indemnify defendants for any c o s t s and expenses arising from damages to persons or property as a result of the alterations. There is no allegation of a n y injury to persons, so the only applicable portion of the provision would be for damages to the building itself. The only damages alleyed by d e f e n d a n t s in their counterclaim are increased administrative and professional expenses, not damages to property, which is not recoverable as indemnification under the clear language of the alteration agreement. That portion of defendants' cross motion seeking summary judgment on its second counterclaim f o r attorney's fees is granted on the issue of plaintiff's liability, since the right to seek such fees for asserting a counterclaim in any s u i t brouqht by plaintiff alleging a violation of the proprietary lease is embodied in paragraph 28 of the lease, as amended in 2000. However, the amount of the fees recoverable is to be determined at trial. 21 [* 23] That portion of defendants cross m o t i o n seeking summary judgment on their third and fourth counterclaims, for breach of the alteration agreement and proprietary lease respectively, is granted. In order to maintain a cause of action for breach of contract, defendants must allege: (1) the existence of a contract; (2) their performance under the contract; (3) plaintiff s breach of that contract; and (4) damages as a result of that breach. JP Morgan C h a s e v J. If. E l e c t r i c of N e w Y o r k , Inc., 69 A D 3 d 802 (2d Dept 2010). The plaintiff argues, in substance, that any alleged breach on her part was minor, whereas defendants alleged breach was material. In opposition, defendants argue that the contractual provision mandating strict compliance negates any argument regarding the degree o ¬ b r e a c h . point. However, both parties miss the Whether a breach of contract is considered to be material or minor does not affect the cause of action; rather, jt only goes to the remedy permitted the nonbreaching party. When a party materially breaches a contract, the nonbreaching party must choose between two remedies: it can elect to terminate the contract or continue it: [internal quotation marks and citation omitted] . I A w a r d s . corn v Kink.o s, 111~. 42 , AD3d 178, 188 (1 Dept 2007), a f f d 14 NY3d 791 (2010). However, when the nonbreaching party elects to continue to perform, it 22 [* 24] does not waive the right to s u e for the alleged breach. Syracr.7se Orthopedic Specialists, P.C. v Hootnick, 42 AD3d 890 ( 4 t t ' Dept 2007). The legal remedy for a breach of contract, regardless of whether that breach be material or minor, is monetary damages designed "to place the nonbreaching party in as good a position as it would have been had the contract been performed [citation omitted] .', See M a n a s v V S A s s o c i a t e s , L L C , 53 AD3d 451 ( l X t M Dept 2008). Despite her voluminous memoranda in support a n d in r e p l y , plaintiff h a s never challenged the allegations that she breached the agreements. All of plaintiff's arguments address her contentions that defendants are the breaching parties. Therefore, since the evidence presented substantiates de ¬endants' claims that the renovation work performed by plaintiff was not in conformity with the alteration agreement and the proprietary lease,' and plaintiff has provided no evidence in admissible form to the contrary, the court concludes that defendants a r e entitled to summary judgment on the issue of plaintiff's liability on their third and fourth causes of action f o r b r e a c h of contract. The measure of defendants' damages, if any, is left to the trier of fact. I As stated above, the issue of the h e i g h t differential bet.ween the ceiling and the floor has already been determined by this court, and the breaches addressed herein concern the o t h e r breaches alleged by defendants previously noted. 23 [* 25] CONCLUSION The preliminary injunction was based on the expectation Vhat plaintiff would prevail on the merits. Since plaintiff has clearly not prevailed on the merits, the preliminary injunctj.ori must be vacated. Eased on the foregoing, it i.s hereby ORDERED t h a t plaintiff s motion is denied; and it is further ORDERED that the branch of defendants cross motion seeking surrunary judgment dismissing the complaint is granted, and the complaint is dismissed; and it is further ORDERED that t h e portion of defendants cross motion seeking summary judgment on their first counterclaim is denied; and it is further ORDERED that the portion of defendants cross motion seeking summary judgment on their second, third and fourth counterclaims is granted on the issue of liability only and the issue of the amount of a judgment to be entered thereon s h a l l be determined aL the trial herein; and it is further ORDERED that in view of the dismissal of the complaint, the preliminary injunction previ,ously issued by the court prohibiting the defendants from interfering with the rehabilitation of her apartment is vacated; and it is further 24 [* 26] ORDERED t h a t the action shall continue as to defendants s e c o n d , third, fourth, fifth a n d sixth counterclaims. ENTER: - Louis B. Y o r k , J . S . C . MAW 27 2012 NEW YOHK COUNTY CLERK S OFFICE 25

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