After Midnight Co. LLC v MIP 145 E. 57th St., LLC

After Midnight Co. LLC v MIP 145 E. 57th St., LLC 2017 NY Slip Op 00076 Decided on January 5, 2017 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 January 5, 2017
Friedman, J.P., Acosta, Mazzarelli, Andrias, Moskowitz, JJ.
2644 151014/15

[*1]After Midnight Company LLC, Plaintiff-Appellant,

v

MIP 145 East 57th Street, LLC, Defendant-Respondent.

Sher Tremonte LLP, New York (Robert Knuts of counsel), for appellant.

Cleary Gottlieb Steen & Hamilton LLP, New York (Mark McDonald of counsel), for respondent.

Order, Supreme Court, New York County (Carol Edmead, J.), entered on or about November 16, 2016, which, to the extent appealed from as limited by the briefs, granted defendant's motion dismissing in part the complaint, unanimously affirmed, with costs.

The IAS court properly found that article 4 of the parties' lease precludes plaintiff, a commercial tenant, from bringing any claim against defendant landlord for inconvenience, annoyance, or injury to plaintiff's business. This Court has repeatedly interpreted substantially identical lease provisions in this way (see e.g. Bowlmor Times Sq. LLC v AI 229 W. 43rd St. Prop. Owner, LLC, 106 AD3d 646, 647 [1st Dept 2013]; Duane Reade v 405 Lexington, L.L.C., 22 AD3d 108, 111, 112 [1st Dept 2005];

Periphery Loungewear v Kantron Roofing Corp., 190 AD2d 457 [1st Dept 1993]).

Plaintiff's fraud claim failed to allege particular facts (see CPLR 3016[b]) and was duplicative of the breach of contract claim (Intl. Plaza Associates, L.P. v Lacher, 63 AD3d 527 [1st Dept 2009]).

The negligence claim was duplicative of the breach of contract claim (see Sommer v Federal Signal Corp., 79 NY2d 540, 551 [1992]). In addition, plaintiff failed to allege conduct that "smack[ed] of intentional wrongdoing" sufficient to support a claim for gross negligence (id. at 554 [internal quotation marks omitted]). Plaintiff alleged no more than breach of a private contract and loss of the benefit of its bargain.

The IAS court correctly dismissed plaintiff's claims for unjust enrichment and constructive trust, since the claims involve subject matter covered by the parties' enforceable

contract (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 5, 2017

CLERK