Herson v Marzullo

[*1] Herson v Marzullo 2021 NY Slip Op 50651(U) Decided on July 2, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 2, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-393 K C

Kevin Herson, Respondent,

against

Tara Marzullo, Appellant.

Gabor & Marotta, LLC (Jeannette Poyerd-Loiacono of counsel), for appellant. Kevin Herson, respondent pro se (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated October 11, 2019. The order, insofar as appealed from, denied defendant's motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's motion to dismiss the complaint is granted.

The summons with endorsed complaint in this action states that plaintiff is seeking to recover the principal sum of $25,000 for "breach of lease on June 1, 2018." After denying liability and asserting affirmative defenses, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), (7), and (10). In her supporting affidavit, defendant stated that, after plaintiff had commenced this action, she had requested, and plaintiff had supplied her with, a copy of the lease upon which plaintiff premised his cause of action. The lease agreement plaintiff provided, which defendant annexed to her moving papers, was between defendant's father, Mario Dischiavi, as landlord, and plaintiff and Stacey Luckow as tenants. Defendant stated that her father had died on June 7, 2018, at which time he retained title to the demised premises; that no representative had been appointed for Dischiavi's estate; and that title to the premises remained in Dischiavi's name. She argued in part that the complaint, which was for breach of lease, should be dismissed against her because she had not been plaintiff's landlord. Plaintiff did not submit any papers in opposition to defendant's motion. Following oral argument, the Civil Court denied defendant's motion upon a finding that a question of fact [*2]existed as to the current ownership of the premises.

On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, we presume the facts in the complaint to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Here, plaintiff alleges the breach of a lease on June 1, 2018, and the lease plaintiff provided to defendant demonstrates that Dischiavi, not defendant, was plaintiff's landlord. "Liability for breach of contract does not lie absent proof of a contractual relationship or privity between the parties. One cannot be held liable under a contract to which he or she is not a party" (Arroyo v Central Islip UFSD, 173 AD3d 814, 816 [2019] [internal quotation marks and citations omitted]). Since there was no privity between the parties, the Civil Court should have granted defendant's motion to dismiss the complaint.

We reach no other issue.

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion to dismiss the complaint is granted.

WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021