Obolewicz v CRP/Extell Parcel 1, L.P.

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Obolewicz v CRP/Extell Parcel 1, L.P. 2012 NY Slip Op 32874(U) November 30, 2012 Supreme Court, New York County Docket Number: 107554/2010 Judge: Anil C. Singh 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. SCANNED ON 121512012 [* 1] 1 SUPREME COURT OF THE S PRESENT: - - Index Number 107554/2010 OBOLEWICZ, JENNIFER ' INDEX NO. vs. CRPIEXTELL PARCEL I LP SEQUENCE NUMBER : 002 MOTION DATE MOTION SEQ. NO. PARTIAL SUMMARY JUDGMENT The following papem, numbered 1 to Notice of MotionlOrderto Show Cause Answering Affidavits Replying Affidavits - Exhibits - ,were read on this motion to/for -Affidavits - Exhibits IW s ) . IW s ) . [* 2] Indcx No.: 107554/10 DECIS ION/OKL)ER -against- CRP/EXTELJ, PARCEL 1, L.P., EXTELL DEVELOPMENT COMPANY, PENMARK REALTY CORPORATION and THE CORCORAN GROUP, INC. d/b/a CORCORAN SUNSHINE MARKETING GROUP, Defendants. I I .................................................................... X HON. ANIL SINGII, J.S.C.: In this residential real estate action, plaintiff JenniIer Obolewicz (Obolcwicz) moves \ , for partial summary judgment on the complaint, while defendant Penmark Realty Corporation (Penmark) cross-moves for summary judgment to dismiss the complaint as against it, and the remaining defendants - CW/Extell Parcel 1, L.P. and Extell Development Company (the Extell defendants) and the Corcoran Group, Inc, d/b/a Corcoran Sunshine Marketing Group (Corcoran) - cross-move for summary judgment to both dismiss the complaint and to grant the Extell defendants' counterclaim (motion sequence number 002). Penmark also moves separately, via order to show cause, to compel plaintiff's deposition (motion sequence number 003). 'l'hcse motions are consolidated for disposition. BACKGKOUNI) Obolewicz is thc owner of rcsidcntial condominium apartment unit 4V in a building (the building) located at SO Riverside Blvd. in Manhattan, See Notice of Motion (motion 1 . . .. . [* 3] sequence nuinbcr OOZ), Obolewicz Affidavit, 1 6. The Extcll defendants are the building s 1 sponsor and developer, rcspectively; Corcoran is the agent that brokered the sales of the building s apartment units; and Penmark is the building s managing agent. Id. On June 27,2007, Obolewicz and the Extell defendants executed an option contract (the Option Contract) for Obolewicz to purchase apartment 4V. See Notice o f Motion (niolion sequence number 002)) Exhibit C. Thc relevant portion of the Option Contract providcs as follows: N o Representations. Purchaser [ i.e., Obolewicz] acknowledgcs that 21. Purchaser has not relied upon any architect s plans, sales plans, sclling brochures, advertisements, representations, warranties, statcrnents or estimates ofany nature whatsoever, whether written or oral, made by Sponsor [Le., the Extell defendants], Selling Agent 1i.e.)Corcoran] or otherwise, including, but not limited to, any relating to the description or physical condition of the Property, the Building or the Unit, ... the services to be provided to Unit Owners, ,.. or any other data, except as herein or in the Plan specifically represented, Purchascr having rclied solely on Purchaser s own judgment and invcstigation in deciding to cnter into this Agreement and purchase the Unit. No person has been authorized to make any representations on behalf of Sponsor except as herein or in the Plan specifically set forth. No oral rcpresentations or statements shall be considercd a part of this Agreement. Sponsor makes no representation or warranty as to the work, matcrials, appliances, equipment or fixtures in the Unit, the Common Elements or any other part of the Propcrty other than as set forth herein or in the Plan. The provisions of this Article shall survive the closing of title. Id. On that datc, the Extell defendants also gave Obolewicz a copy of thc building s offering plan, the relevant portion ol which provides as follows: 10. Construction is a complicated process requiring the coordination of numerous, tasks, contractors and suppliers and the balancing of complex mcchanical and architectural systems. No assurance can be given with regard to the accuracy of any projected completion dates set forth herein. During the first years of Condominium operations, construction workers and related personncl will be at the Property from time to time completing construction of 2 [* 4] the Building, making adjustments and corrections and performing various tasks rclatcd to the completion of construction, which may occur at all hours and, could compromise the Building s security systems. During this period, various building systems, including but not limited to water supply, air conditioning, heating, cooling, ventilating and elevators, may need to be shut down temporarily. Id.; Exhibit D. Obolewicz and the Extell defendants eventually closed the sale of apartment 4V on May 19, 2009. Id.; Obolewicz Affidavit, 7 10. Obolewicz states that, when she first visited thc building to view the apartments that wcre available for sale, she explained to Corcoran employee Melissa Ziweslin (Zjweslin) that she required a quiet apartment with an unobstructed view, and asserts that Ziweslin specifically rccoinmendcd unit 4V to her. See Notice of Motion, Obolewicz Affidavit, 17 34. Obolewicz further states that Ziweslin showed her a floor plan of the unit and a scale model of the building that indicated that apartment 4V would face out over an interior courtyard that would be covered only with grass. Id. Obolcwicz also states that she repeatcd her requirements regarding quiet and an unobstructed view to the representatives of the Extell dcfcndants when she signed thc option contract. Id. Obolewicz acknowledges that, at the time of closing, construction ofthe building s common areas was not yet complete and the courtyard had not been landscaped, and that she observed these conditions at a pre-closing walk-through inspection. ld., 7 9. Obolewicz also asserts that there were months of delays before the construction and landscaping were completed, and that three structures were finally built in the building s courtyard that emitted noise and odors that disturbed her peace and prevented her from opening her windows. Id., 77 11-12, 16. Obolewjcz claims that thesc structures ) (which she describes as a generator and vent fans) were not described in eithcr 3 . .. [* 5] the building s offering plan or in her option contract, asserts that they were constructed illegally and/or improperly, and provides copies of six violations that were recorded by Environmental Control Board (ECB) inspcctors against thc building for these structures as a rcsult of Obolcwicz s complaints. Id., 77 14-17; Exhibit E. On June 2 1, 20 1 I , dissatisfied with defendants elTorts to remedy her concerns, Obolewicz served an amended complaint that sets forth causes of action for: 1) fraudulent misrepresentation; 2) negligent misrepresentation; 3) breach of the covenant of quiet enjoyment; 4) breach of contract; 5) private nuisancc; and 6) diminished value. See Noticc of Motion (motion sequence number OOZ), Exhibit J. The Extell defendants filed an answer with affirmative defenses to this complaint on July 25, 201 1; Corcoran filed its answer with affirmative defenses on July 22,20 1 1; and Penmark filed its answer with affirmative defenses on Novcmbcr 29,20 1 1. Id.; Exhibits L, M, N. The Extell defendants answer includes a counterclaim for attorney s fees. Thereafter, discovery ensued. IJnhappy with the pace of compliance, on March 12,2012, Pcimark submitted an order to show cause lo compel Obolewicz s deposition (motion scqucncc number 003). Obolewicz was originally deposed on March 3 1,201 1; however, she was also deposed a second time on March 22,2012, thus rendering Penmark s order to show cause moot. Now before the court are Obolcwicz s I Counscl for Penmark asserts that it was retained on November 9,201 1 after ObolewicL s original deposition (in which it obviously did not participatc), thus necessitating the instant order to show causc. See Pariser Affirmation in Support of Cross Motion (Penniark), fl 14-20. I Iowever, during a status conference held before this court on March 28,20 12, the parties acknowledged that Obolewicz had recently been deposed for a second time on March 22,201 2, with full participation by Penmark s counsel. Id.; Exhibits H, I. In the absence of any other missing discovery allegations, it is clear that the relief requested in Penmark s order to show cause is now moot. ) 4 [* 6] motion for partial summary judgment on her first, second and fifth causes of action2 and thc cross motions of Penniark and ofthe Extell defendants and Corcoran that seek summary judgnient dismissing the amended complaint (motion sequence number 002) and on their counterclaim. DISCUSSION When seeking summary judgment, the moving party bears the burden of proving, by competent, admissible evidence, that no material and triable issues of fact exist. See e.g. Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1 (1 985); Sokolow, Dunauu , Mercadier & Carreras v Lacher, 299 AD2d 64 (1st Dcpt 2002). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof , in admissible form, sufficient to establish the existence of material issues offact which require a trial of the action. See e.g. Zuckerman v City ofNew York, 49 NY2d 557 (1980); Pernberton v New Y w k City Tr. Auth., 304 AD2d 340 (1 Dept 2003). IIere, the court finds that all of the motions should bc granted in part and denied in part. Plaintiff s Motion As previously mentioned, in hcr motion, Obolei icz eeks partial si mmary ji dgment on her first, second and fifth causes of action. The first of these alleges fraudulent misrepresentation, the proponent of which claim must demonstrate misrepresentation or concealrncnt of a material fact, falsity, scienter by thc wrongdoer, justifiable reliance on the 2 In her moving papers, Obolewicz asserts that she is seeking summary judgment on her second, third and fifth causes of action; however, this is clearly a typographical error. 5 [* 7] deception, and resulting injury, Zunetl Lombardier, Ltd. v Muslow, 29 AD3d 495,495 (1 Dept 2006). IIcre, Obolewicz merely recites thcse elements in her complaint without citing to any specific acts by defendants. See Notice of Motion (motion sequence number 002), Exhibit J (amended complaint), 77 17-20. In her memorandum of law, however, Obolewicz argues that defendants - through their agents - knowingly misrepresented the facts relating to what was to be includcd in the [building s] courtyard in an attempt to induce plaintiff to purchasc the specific unit that defendants suggested. See Plaintiff s Memorandum of Law (motion sequence number 002), at 13. The Extell defendants rcspond first, that the offering plan does, in fact, disclose the existence ofthe structures that Obolewicz complains of. See Defendants Memorandum of Law, at 7-9. Defendants arc correct. The drawings annexed to the offering plan clearly disclose two rectangular structures in the building s courtyard that are labeled as vent opening and gravity vent opening, respectively. See Noticc of Motion, Exhibit D. Defendants also argue that paragraph 2 1 of the option agreement precludes Obolewicz from proving the reliance element of her claim, as a matter of law, because that portion of the contract specifically disclaims thc type of reliance that Obolewicz seeks to assert. See Defendants Memorandum of Law, at 16-19. Again, defendants are correct. Thc option agreement plainly recites that Purchaser has not relicd upon any architect s plans, sales plans, selling brochures, advertisements, representations, warranties, statements or estimates of any nature whatsoever, whether writtcn or oral, ... except as herein or in the [offering] Plan specifically represented, that [nlo person has been authorized to make any representations on bchalf of Sponsor, and that [nlo oral representations or 6 [* 8] statements shall be considered a part of this Agreement. See Notice of Motion, Exhibit C. Furthcr, New York law has long held that such disdaimers destroy[] the allegations in [the] complaint that the agreement was cxecuted in reliance upon [defendants ] contrary oral representations, and render the claim sub.ject to dismissal. See e.g. Plaza PHZUUI, LLC v Plaza Residential Owners LP, 79 RD3d 587, 587 (1 Dept ZOlO), quoting Danann Realty Corp. v Harris, 5 NY2d 3 17, 320-321 (1959). Thus, it would appear that Obolewicl s fraudulent misrepresentation claim is similarly unsustainable, as a matter of law. Obolewicz nevertheless argues that hcr claim may survive pursuant to thc exception that the law recognizes where a plaintiff plcads a breach of duty separate from, or in addition to, a breach of contract. See Plaintiffs Memorandum of TAW, at 12-14. Howevcr, this wgurncnt clearly inisscs the point. Defendants do not argue for dismissal on the ground that Obolewicz s fraudulent misrepresentation claim is duplicative of her breach of contract claim, but (as was just discussed) on thc ground that it is legally deficient. I hcrefore,the exceptio11 that Obolewicz cites is inapposite. Obolcwiw docs not raise any other legal arguments in support of her fraudulent misrcpresentation claim. Howevcr, the court notes that it is well settled that on a motion for summary judgment, the construction of an unambiguous contract is a question of law for thc court to pass on, and ... circumstances extrinsic to the agreement or varying interpretations of the contract provisions will not be considered, where ... the intention ofthe parties can be gathered from the instrument itself. Maysek & Momn, Inc. v Warburg B Co., 284 AD2d 203,204 ( lstDept 2001), quoting Lake Constr. & Dev. Cuip. v City ofNew York, 2 1 1 AD2d 5 14, 5 15 (1 Dept 1995). Here, the 7 [* 9] court finds that thc plain language of the option agreement makes it clear that thc allegedly fraudulent misreprcsentations at bar in this action were not related to activity separate and apart from that contract, but rather constituted acts that the contract spccifically banned Obolewicz from relying upon. Therefore, the court rejects Obolewicz s argument, and finds that thc branch of her motion that seeks partial summary judgment on her fraudulent misrepresentation claim should be denied. Obolewicz s second cause of action alleges negligcnt misrepresentation, the elcments of which claim include: ( 1) Ihe existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrcct; and (3) reasonable reliance on the information. MathPatterson A TA Holdings LLC v Federal Express Curp., 87 AD3d 836, 840 (1 Dept 201 l), quoting J.A.O. Acquisition C o y . v Stavitsb, 8 NY3d 144, 148 (2007). Here, both Obolcwicz and the Extell defendants argue the issue of whether or not a special relationship existed between them for the purposes of this claim. See Plaintiffs Memorandum of Law, at 10-12; Defendants Memorandum of Law in Opposition (Extell), at 20-24. Although the court does not believe that the evidence at hand discloses the existence of such a relationship, it need not discuss this issue in detail, inasmuch as Obolcwicz is precluded from establishing the reliance element of this claim for the same reasons that were reviewed in the preceding section of this decision. Thcrcfore, the court again rejects Obolewicz s argument, and finds that thc branch ol her motion that seeks partial summary judgmcnt on her negligent misrepresentation claim should be denied. 8 1 [* 10] Obolewicz s fifih cause of action alleges private nuisance, the elements uf which claim include ( 1) an intcrferencc substantial in nature, (2) intentional in origin, (3) unrcasonable in character, (4) with a person s property right to use and cnjoy land, ( 5 ) caused by another s conduct in acting or failure to act. ) See Ewen v Maccherone, 32 Misc 3d 12, 14 (Rpp Term, 1 Dept 20 1 1), quoting Copart hdus. v Consoliduted Edison Co. o f N Y., 4 1 NY2d 564, 570 (1977). Here, Obolewicz argues that the six violations that the BCB issued against the building as a result of her complaints about the courtyard vent fans constitute prima facic proof of her private nuisance claim. See Plaintiff s Memorandum of Law, at 610. Obolewicz is correct. In JP Mnrgm Chase Bank v Whitmore (4 1 AD3d 433 [2d Dept 2007 I), the Appellate Division, Second Department, rendered this exact holding. Thus, the court finds that Obolewicz has bornc the burden of proving that she is entitled to partial summary judgment on her nuisance claim. Nevertheless, defendants raise a number of arguments in opposition to that claim. The Extell dcfcndants first argue that Obolcwicz is unable to cstablish that she suf fered any damages in connection with her private nuisance claim, or that she is entitled to injunctive relief . See Defendants Memorandum of Law, at 24-26. They cite the decision of the Appellate Division, Second Department, in Guzzardi v Perry s Boats, h c . (92 AD2d 250 [2d Dept 19831) ibr the proposition that a plaintiff s LLconclusoy assertions regarding damages for private nuisance arc insufficient to support a claim, and rcquire that claim s dismissal. See Defendants Mcmorandurn of I,aw in Opposition (Extell), at 24-26. Guzzardi indeed sets forth the rules for calculating the damagcs element of a private nuisance claim 9 [* 11] that is based upon the interference with the use or enjoyment of land, holding that: In such a casc, the plaintiffs must demonstrate their entitlement to monetary damages or injunctivc relief. Where the injury is pcrrnanent, the measure of damagcs for private nuisance is the diminution of the market value of the property, or where the injury is temporary, the reduction of the rental or usable value of thc property. Insofar as injunctivc relief is concerncd, such relici is available only if plaintiffs demonstrate that damage resulting from the alleged nuisancc is not insubstantial [internal citations omitted]. 92 AD2d at 254-255. Further, in Guzzardi, the Second Department upheld the trial court s finding that the plaintifr s evidentiary submissions regarding damages, which consisted solely of affidavits containing conclusory statements, were insufficicnt to supporl her claim. Here, however, Obolewicz has yct to submit any evidence regarding damages, having thus Fdr simply established defendants liability to her for permitting a private nuisance to persist at the building. Now that she has done so, in accordance with the holding of JP Morgan Chase Bank v Whitmore, the court iinds that the calculation of damages is a matter that can be submitted to a Special Referee to hear and report on. Therefore, thc court rejects defendants first argument. Next, defendants argue that Obolewicz s private nuisance claim presents no triable issuc of fact concerning the substantiality and reasonableness of thc alleged nuisance. See Defendants Meinorandurn o f h w in Opposition (Extell), at 26-3 1. However, this argument is unavailing under the instant circumstances, in which Obolcwicz has already established all of thc elements of her private nuisance claims by submitting proof of the six ECB violations issued to defendants. See JP Morgan Chase Bank v Whitmore, 41 RD3d 433, supra. Therefore, the court rejects defendants second opposition argument as moot. 10 [* 12] Finally, defendants argue that Obolewicz s private nuisance claim must be dismissed as against Corcoran, because Corcoran never controlled thc premises. See Defcndaiits Memorandum of Law in Opposition (Extell), at 3 1-32. Obolewicz opposes this argument on the ground that Corcoran s sales representative knowingly and intentionally directed plaintiff when she ... informed plaintiff that unit 4V fulfilled the requirements shc was looking for in a condominium. See Plaintiffs Reply Memorandum of Law, at 26-27. This argument appears to be directed at the reliance elements ol Obolewicx s two misreprcsentation claims rather than at any clement of her private nuisance claim. In any case, it is inapposite. Also inapposite is the case law that Obolewicz cites in her memorandum - neither StigZianese u VaZZone (1 68 Misc 2d 446 [Civ Ct, Rx County 19951, revd 174 Misc 2d 3 12 [App Term, lstDept 19971, reud 255 AD2d 167 [ 1 Dcpt 19981) nor State ofNew York v Monarch Chems. (90 AD2d 907 13d Dept 19821) holds that a property owner s sales representative can be held vicariously liable for a private nuisance that the owner permits to persist on its property. Indeed, the only decision that the court could discovcr that spoke directly to the issue of who arc proper parties to a private nuisance claim, Stanley v Amalithone Realty, Inc. (3 1 M i x 36 995, 998-999 (Sup Ct, NY County 201 I), merely observed that [tlypically, those owning or holding interests in real propcrty are necessary parties to a nuisance action affccting the property or to a proceeding to restrict its use. Obviously, Corcoran is neither. Therefore, in the absence of any evidence from Obolewicz demonstrating that Corcoran played a part in the creation or maintenance of the instant nuisance (consisting of the noise and odors emanating from the building s courtyard), 11 [* 13] the court agrees with defendants that Obolewicz s claim cannot stand as against Corcoran. Accordingly, the court concludes that Obolcwicz s motion for partial sumniary .judgment should be denied with respect to her first and second causes of action, and with respect to her fifth causc of action as against Corcoran only, but that it should be granted with rcspect to her fifth cause of action on the issue of liability only as against the rcrnaining defendants, and that the damages element of that cause of action should be submitted to a Special Referee to hear and report. Defendants Cross Motions The first defendants cross motion was submittcd by Penmark, which observes that it is only namcd as a defendant in Obolcwicz s first and second causes of action, and argues that these claims (and, hence, the entire amendcd complaint) should be dismissed as against it because these claims arc legally deficient. See Memorandum of Law in Support of Cross Motion (Penmark), at 11-17. Obolewicz disputes this, and asserts that Penmark is a defendant in all causes of action cxcept her brcach of contract claim. See Plaintiffs Memorandum of Law in Opposition to Cross Motions at 7-9, At the outset, the court rciterates that Obolewicz s first and second causes of action fail, as a matter of law, because Obolewicz is precluded from establishing the rcliance element of either of these misrepresentation claims. Therefore, the court finds that Penmark s cross motion should be granted with respect to Obolewicz s first and second causes of action. With respect to Obolewicz s remaining claims for breach of the covenant of quiet 12 [* 14] enjoyment, private nuisancc and diminished value, Penmark argues that Obolewicz cannot maintain them against it because they are cach legally defective. See Memorandum ol I,aw in Support of Cross Motion (Penmark), at 18-23. The court agrees. As regards the first of these, it is black letter law that a condominium owncr has no cognizable claim for breach of warranty o f habitability against a condominium. Linden v Lloyd s Planning Serv., 299 hD2d 2 17, 2 I 8 (1st Dept 2002), citing Frisch v Bellmarc Mgf., 190 AD2d 383 (1 Dept 1993). Since Penmark is the Extell defendants managing agent, it is clear that New York law will not recognize a condominium unit owncr s breach of warranty of habitability against it, either. Therefore, the court finds that Penmark s cross motion should be granted with respect to Obolcwicz s third cause of action. As regards Obolewicz s private nuisance claim, Penmark correctly points out that, under New York law, a managing agent acting on bchalf of the condominium, is not liable to plaintiffs, third parties to the management agreement, for nonfcasancc. See Culdwell v Two Columbus Ave. Condominium, 92 AD3d 44 1,442 ( 1 Dept 20 12). Obolewicz responds that Penmark instead cngaged in active malfeasance with respect to thc nuisance, and is, thus, ( not entitlcd to claim the protcction of this law. See Plaintiff s Reply Memorandum in Opposition to Cross Motions, at 13-15. However, the only acts of malfeasance that Obolewicx dcscribes in her rncmorandum are Penmark s intentional and/or reckless failure to rcspond to her inquiries. Id. Thc court finds that a failure to respond clearly describes a classic act of passive non-feasancc rather than an act of malfeasance. Therefore, the court rejects Obolewicz s argument, and f-inds that Penmark s cross motion should be granted with 13 [* 15] respect to Obolewicz s fourth cause of action. As regards Obolewicz s diminished value claim, Penmark correctly points out that New York law does not recognize this as an independent cause of action, but merely as a measurcrncnt oI dmages in a private nuisance claim. See e.g. Board ofMgrs. of Waterford Assn. Inc. v Sumii, 73 AD3d 617 ( I Dept 2010). Therefore, the court finds that Obolewicz s diminished value claim must fail, as a matter of law, and that Penmark s cross motion should be granted with respect to that cause of action, Accordingly, the court finds that Penmark s cross motion should be granted in full. The second cross motion herein is by the Extell defendants and Corcoran, and it, too, seeks dismissal of the entire amended complaint as against them. However, the court has already determined that Obolewicz is entitled to partial summary judgment on her private nuisance claim as against the Extcll defendants (but not Corcoran), and that her causes of action for fraudulent misrcprcsentation, negligent misrepresentation, breach of the warranty of habitability and diminished value are all legally deficient. Therefore, at the outsct and for the reasons discussed above, the court finds that the Extell defendants and Corcoran s cross motion should be denied with respect to Obolewicz s private nuisance claim (as regards the Extell defendants, but granted as regards Corcorm), and granted with respect to the other causes of action. With respect to Obolewicz s fourth cause of action for breach of contract, it is clear that Corcoran was not a party to the option agreement, and thercfore cannot be held liable for its breach. Thus, the Extell dcfendants and Corcoran s cross motion should be granted as to 14 [* 16] Corcoran with respect to Obolewicz s breach of contract claim. The Extcll defendants arguc that that claim should be dismissed as against them, too, pursuant to the doctrine ofmergcr. See Defendants Memorandum of Law in Support of Cross Motion (Extell/Corcoranj, at 33-34. Clearly, the option agreement contains a merger clause and an as is clause, in addition to the disclaimers that were discussed earlier in this decision. See Notice of Motion (motion sequence number 002), Exhibit C. Further, the Extell defendants arc correct that a mcrger clause, in conjunction with such disclaimers, will f bc givcn effect to disallow a subsequent brcach of contract claim. See e.g. Board ofMgrs. o Chelsea I9 Condominium v Chelsea I9 Assoc., 73 AD3d 58 1 (1 Dept 20 1Oj. In response, Obolewicz cites the decision of the Appcllate Division, First Department, in Berengo v 261 K LLC. (93 AD3d 175 [ 1 Dept 2012j), for the proposition that if there are issues as to whether the defendants conduct was intentional, the dcfendants liability could not be limited by the contract. Obolewicz clcarly misreads this decision, which simply permitted the plaintiff s tort-based claims to survive summary judgment on public policy grounds, but did not address his brcach of contract claim. Thus, Berenger does not support Obolcwicz s argument, and the court rejects that argument on the ground that the option contract s merger clause and disclaimers bar her breach of contract claim. Accordingly, the court finds that the Extell defendants and Corcoran s cross motion should bc granted with respcct to Obolewicz s fourth cause of action. Thc final branch of the Extell defendants and Corcoran s cross motion conccrns the Extell def endants counterclaim for attorney s fees incurred in dcfending Sponsor s [i.e. the 15 [* 17] Extell defendants ] rights under this [option] agreement. See Notice of Motion (motion scyuencc number 002)) Exhibit C, 7 3 1 . However, in their memorandum of law, the Extcll defendants acknowlcdge that if one or more of plaintiffs claims should survive the cross motion ... thc issue of attorney s fees will not be ripe for summary judgment. See Defendants Memorandum of Law in Support of Cross Motion (ExtcllKorcoran), at 35. Here, Obolewicz s claim for private nuisance survives, and, therefore, the Extell defendants counterclaim for attorncys fees incurred is, indccd, not yet ripe. Accordingly, the court denies this branch of the Extell defendants and Corcoran s cross motion without prejudice. Penmark s Order to Show Cause As was discussed previously, the relief requested in Penmark s order to show cause - i s . , an order to coiiipcl Obolewicz s deposition - was afforded when Obolewicz was deposed for a second timc on March 22,2012. Accordingly, that order to show cause is now denied as moot. DECISION ACCORDINGLY, f or the foregoing reasons, it is hcreby ORDERED that the motion, pursuant to CPLR 3212, ofplaintiff Jennifer Obolewicz (motion sequence number 002) is granted solely to the extent o f granting partial summary judgment in favor ofplaintiff and against defendants CRPExtell Parcel 1, L.P. and Extell Developnicnt Company on hcr fifth cause of action in the amended complaint (for private nuisance) on the issuc of liability only, but is otherwise denied; and it is further ORDERED that the issue of the determination and calculation of damages on the 16 [* 18] aforesaid claim is referred to a Special Referee to hear and report with recommendations, except that, in thc evcnt of and upon the filing of a stipulation of the parties, as permitted by CPLK 43 17, the Special Referee, or another person designated by the parties to serve as referee, shall determine the aforesaid issue; and it is further ORDERED that this motion is held in abeyance pending receipt of the report and rccornmendations of the Special Referee and a motion pursuant to CPLR 4403 or reccipt of the determination of the Special Referce or the designated referee; and it is further ORDERED that counsel ( or the party sceking the refercnce or, absent such party, counsel for thc plaintiff shall, within 30 days from the date of this order, serve a copy of this order with notice of entry, togethcr with a completed Information Sheet,j upon the Special Referee Clerk in the Motioii Support Office in Rm. 119 at 60 Centre Street, who is directed to place this matter on the calendar of thc Special Referee s Part (Part 50 R) for the earliest convenient date; and it is further ORDERED that the cross motion, pursuant to CPLR 32 12, of defendant Pemnark Realty Corporation (motion sequence number 002) is granted and the amended coinplaint is dismissed as againsl said defendant with costs and disbursements to said defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further ORDERED that the Clerk is directed to enter judgment accordingly; and it is further ORDERED that the cross motion, pursuant to CPLR 32 12, of defendants CRPExtell Parcel 1, L.P. and Extell Development Company and the Corcoran Group, lnc. d/b/a 3 Copies are availablc in Rm.119 at 60 Centrc Strcet, and on the Court s website. 17 [* 19] Corcaran Sunshine Marketing Group (motion sequence number 002) is granted solcly to thc extent that the amcnded complaint is severed and dismissed as against the Corcoran Group, Tnc. d/b/a Corcoran Sunshinc Marketing Group with costs and disbursements to said defendant as taxed by the Clerk upon the submission of an appropriate bill of costs, and that thc h s t , second, third, fourth and sixth causes o f action in the amended complaint are dismisscd with respect to defendants CRPExtell Parccl 1, L.P. and Extell Llevelopmcnl Company, but the cross motion is otherwise denied; and it is further 0KDEW.D that the Clerk is directed to enterjudgment accordingly; and it is further OWBRED that the order to show cause of defendant Penmark Realty Corporation (motion scquence number 003) is dcnied as moot. ENTER: 18

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