LaSalle Hotel Lessee, Inc. v Marriott Hotel Services, Inc.

LaSalle Hotel Lessee, Inc. v Marriott Hotel Servs., Inc. 2006 NY Slip Op 04163 [29 AD3d 464] May 25, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

LaSalle Hotel Lessee, Inc., Appellant,
v
Marriott Hotel Services, Inc., Respondent.

—[*1]

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered July 7, 2005, which dismissed the complaint upon the prior grant of defendant's motion pursuant to CPLR 3211 (a) (7), unanimously affirmed, with costs.

Plaintiff failed to plead sufficiently (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]) factual allegations of breach of contract and breach of fiduciary duty. The plain, unambiguous language of the management agreement, when read as a whole (see Brooke Group v JCH Syndicate 488, 87 NY2d 530 [1996]), delegates to defendant the sole right to manage the hotel, including the right to establish employee wages and benefits, with no reservation for plaintiff to approve or disapprove that decision. The cause of action for breach of fiduciary duty, based on the same allegations as for breach of contract, was also properly dismissed (see Layden v Boccio, 253 AD2d 540 [1998]). And since no breach occurred, there can be no claim for declaratory judgment.

We have considered plaintiff's remaining arguments and find them to be without merit. Concur—Mazzarelli, J.P., Andrias, Marlow, Williams and Sweeny, JJ.