Curtis v Bouley

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Curtis v Bouley 2011 NY Slip Op 32928(U) November 1, 2011 Sup Ct, NY County Docket Number: 194558/11 Judge: Eileen A. Rakower 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. ANNEDON 111712011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 15 Index Number : IO455812011 INDEX NO. /OvsSz.~~~ CURTIS, W. ROBERT vs. BOULEY, DAVID MOTION DATE PRESENT: Justlce MOTION SEQ. NO. a& SEQUENCE NUMBER : 002 DISMISS 11 Upon the foregolng papers, It Is ordered that thls motlon Is NEW YORK COUNT( CLERK'S OFFICE Dated: I CHECK ONE: . 1 & J.S.C. ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION I : S ................................................ N CASE DISPOSED 0GRANTED 0SETTLE ORDER [7 DO NOT POST 0GRANTED IN PART 0OTHER 0SUBMIT ORDER FlDUCl,ARYAPPOINTMENT 0REFERENCE DENIED [* 2] Index No. 194558/11 PI aintiff, - against - Mot. Seq.: 002 DECISION/ORDER DAVID BOULEY, BOULEY RESTAURANT, BOULEY AT HOMEBOULEY COMPLEX, BOULEY BAKERY & MARKET, BOULEY STUDIO, BRUSHSTROm, BOULEY/CARE BOULEY TEST KITCHEN, BOJI BOULEY X CORPORATION, BOULEY Y PARTNERSHIP AND B O U L E F Z ENTERPRISE, Defendants. NOV 07 2011 X HON. EILEEN A. M O W E R , J.S.C. NEW YORK IhED __________I______--__1__1_________1___11-------------------------------------------- COUNTY CLERKS OFFICE Plaintiff W. Robert Curtis brings this action for, among other things, private nuisance, premises liability, breach of contract, misrepresentation and specific performance, as the result of an ongoing dispute between' him and his neighbor defendant David Bouley. Plaintiff owns the property located at 155 Duane Street, a five-story townhouse consisting of a two story office which sits below a residential unit. The office space shares a common wall with the building located at 130 West Broadway, which is owned by Bouley. According to the complaint, Bouley, a chef and restauranteur, has recently closed down a number of his restaurants and is using the 130 West Broadway location mainly for food preparation and garbage disposal. As a result, starting in or around, October 2010, plaintiff alleges that the office unit became infested with vermin and flies, preventing him from renting the space for an amount of $30,000$35,000 a month. The parties previously appeared before this Court for oral argument on May 3 1, 201 1, wherein the Court granted Bouley's motion to dismiss to the extent of 1 [* 3] dismissing plaintiffs Tirst, fourth, and fifth causes of action, for public nuisance, breach of contract, and misrepresentation, respectively. The Court also struck paragraphs 9-29 of the complaint as being scandalous and prejudicial, and denied plaintiffs cross-motion for an injunction. Plaintiff subsequently amended his complaint, re-alleging the breach of contract and misrepresentation claims, and adding a claim for specific performance. Bouley again moves to dismiss plaintiffs breach of contract and misrepresentation claims, and to dismiss the cause of action for specific performance, pursuant to CPLR 32 1 1(a)(7). Bouley also moves to strike paragraphs 5,7 and 30 of plaintiffs amended complaint pursuant to 3024(b). Plaintiff opposes and cross-moves for expedited court-supervised discovery, and for specific performance. Bouley argues that plaintiff still fails to plead facts sufficient to sustain the cause of action for breach of contract, in that there was no mutual exchange, and no consideration. As to the misrepresentation claim, Bouley asserts that plaintiff merely alleges future intent on the part of Bouley, which cannot constitute fraud. Further, Bouley claims that, by plaintiffs own admissions, he could not have reasonably relied on Bouley s assurances. Plaintiff, in opposition, submits a letter from Bouley dated November 4,20 10, which plaintiff claims was omitted from the initial complaint and evidences a written agreement, wherein Bouley addresses changes to be made to remediate the fruit fly problem. Plaintiff contends that the consideration supporting the agreement was his delay in commencing a lawsuit. Plaintiff also reformulates his misrepresentation claim to add an allegation that Bouley falsely stated that he remediated the problems in the basement. It is well settled that on a motion to dismiss under CPLR 321 l(a)(7) ...the court s task is to determine only whether the facts as alleged, accepting them as true and according plaintiff every possible favorable inference, fit within any cognizable legal theory. (Ladenburg Thalmann & Co., Inc. v. Tim sAmusements, Inc., 275 AD2d 243,245[ 1st Dept. 20001). The discovery portion of the cross-motion is rendered moot by a so-ordered stipulation entered into at a compliance conference held on September 13,20 11. 2 [* 4] To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all the material terms. (Matter ofExpress Indus. & Term. Corp. v. New YorkState Dept. of Tramp., 93 NY2d 584[ 19993). Plaintiff, in his amended complaint, still fails to allege that there was a meeting of the minds as to the material terms agreed upon with respect to the remediation of the sanitary problems. Nor does plaintiff sufficiently allege the existence of consideration. In order for a forbearance of litigation to constitute consideration, there must be a definite promise to forego future litigation in exchange for the performance requested. (see; Wood Realty Trust v. Storonske Cooperage Co., 229 AD2d 821 [3rd Dept. 19961 and see generally; Elghanian v. Elghanian, 277 AD2d 162[ 1st Dept. 20001)). Here, there was no bargained for consideration. Rather, plaintiff merely conjectures that Bouley promised to remediate the problems at his premises ip order to prevent litigation and complaints to public authorities. As the Court previously found, information about Bouley s disputes with other neighbors, and with New York City agencies, is merely prejudicial and unnecessarily inserted into the pleadings. (see; CPLR 3024[b]). In a claim for fraudulent misrepresentation, a plaintiff must allege a misrepresentation or a material omission of [present] fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury. (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173[20 111). When taking plaintiff s allegations as true, as the Court must, plaintiff now pleads a cause of action sounding in misrepresentation. In his amended complaint, plaintiff alleges that Bouley repeatedly assured him that the problems in the basement had been remedied, when, in fact, he knew that they had not. Whether plaintiffs reliance on Brouley s statements was reasonable is a question generally left to the finder of fact. (Talansky v. Schulman, 2 AD3d 355[ 1st Dept. 20031) Wherefore it is hereby 3 [* 5] ORDERED that the motion is granted to the extent that the causes of action for breach of contract and specific performance are hereby severed and dismissed; and it is further ORDERED that paragraph #'s 5,7 and 30 are hereby stricken from the complaint; and it is further ORDERED that the discovery portion of the cross-motion is denied as moot; and it is further ORDERED that the remainder of the cross-motion is denied. : DATED: November 1,201 1 EILEEN A. M O W E R , J.S.C. FILED NOV 07 2011 NEW YORK COUNTY CLERKS OFFICE 4

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