Brooks v Dormuth
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Brooks v Dormuth 2013 NY Slip Op 31200(U) May 31, 2013 Supreme Court, New York County Docket Number: 101959/2012 Judge: Debra A. James 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 61712013 [* 1] n SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART 59 DEBRA A. JAMES Justice Index No.: CHRISTOPHER BROOKS, Plaintiff, -v- I 0 1959/2012 Motion Date: 08117112 Motion Seq. No.: MARIE DORMUTH, Defendant. 01 Motion Cal. No.: The following papers, numbered Ito 3 were read on this motion to dismiss. PAPERS NUMBERED Notice of Motion/Order to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits Replying Affidavits - Exhibits . This 2 JUDGMEI\ r 3 County Clerk and n n b a s e d hereon. To Cross-Motion: 0 Yes oban wlky, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room j418). Upon the foregoing papers, y tl - I The court shall grant defendant's motion to dismiss the complaint alleging breach of contract pursuant to CPLR 3211. It is undisputed that t h e r e was a valid assignment and assumption of the leasehold interest from defendant to plaintiff including the consent of the landlord dated April 23, 1996. The form of assignment states "Assignor assigns to the Assignee all the Assignor's right, title and interest in a ) the lease and b) the security deposit, if any, stated in the Lease." The assignment governed the southern h a l f of the fifth f l o o r of the Check One: Check if appropriate: FINAL DISPOSITION NON-FINAL DISPOSITION REFERENCE l l DO NOT POST SETTLEISUBMIT ORDEWJUDG. [* 2] premises while the assignor retained occupancy of the unit on the northern h a l f of the same floor. The Rider to the assignment set forth that t h e defendant had certain rights to use the roof of the building pursuant to a lease executed between defendant and the landlord and that "[ilnsofar as [defendant] possesses the limited exclusive right to use the roof as set forth herein she assigns only so much of this right to the [plaintiff] as will allow him to install two skylights on the roof in a location specifically detailed in the diagram drawn to scale and appended hereto . . and an air conditioning compressor in the area of t h e roof to be determined by an engineer or architect." The Rider continues that "[tlenant's right to use the roof for the installation of an air conditioner and s k y lights is conditioned upon and limited by the rights and responsibilities as set forth in the Lease Agreement . . . by and between Max Landau and Marie Dormuth for the Sth Floor North dated A p r i l 1, 1 9 9 5 , ' f The complaint alleges that subsequent to the defendants' leases f o r t h e fifth floor and the assignment of the lease of the northern half of that floor to plaintiff, on March 21, 2 0 0 7 , a condominium offering plan seeking to convert the premises to a condominium was filed. It is asserted that pursuant to the offering plan plaintiff purchased the un'it that was the subject of the assignment and defendant purchased the unit that she occupied. The complaint states that the offering plan granted -2- [* 3] the defendant exclusive rights to the roof which included that portion of the roof that was governed by the original lease assignment between the parties. Plaintiff alleges that defendant refuses to provide him with access to roof as set forth in the assignment agreement and that such acts constitute a breach of defendant's obligations thereunder. Defendant moves to dismiss pursuant to CPLR 3211 (a) ( 1 ) & ( 7 ) on the g r o u n d s that the parties' obligations under the assignment were terminated upon their execution of the offering plan and thus the documentary evidence bars plaintiff's claim because there was no obligation extant that could be the subject of an action for breach. The court shall grant the relief sought by the defendant because the plain terms of the offering plan b a r plaintiff's claim. The complaint alleges, and it is undisputed, that upon the conversion of the premises to condominium ownership, plaintiff became an owner of the apartment which was the subject of the lease assignment. Under the Purchase Agreement for the apartment it is stated that " [ i l f the Purchaser is currently the tenant (a "Tenant Purchaser") under an Existing Lease of the Unit being purchased, the Purchaser agrees that the Existing Lease shall be terminated and canceled upon closing of the title to the Unit on the Closing Date." Therefore, to the extent that plaintiff was -3- . .. . . . .. . .. . . . . . ... . . . . . [* 4] leasing the subject premises p r i o r to purchasing the apartment, any rights g r a n t e d therein were extinguished under the Purchase Agreement pursuant to which the plaintiff became an owner of the premises because the lease was terminated. Defendant could not breach a lease agreement that was terminated by the act of the plaintiff. Even assuming for purposes of this motion that plaintiff argues he was an assignee of the lease rather than the tenant of record for purposes of the Purchase Agreement, such an argument fails to be persuasive. As the defendant a l s o purchased her apartment in the building, her lease for the premises which she assigned to plaintiff also was cancelled pursuant to her Purchase Agreement. As plaintiff's rights under the assignment agreement w e r e specifically conditioned upon defendant's lease which was cancelled when defendant purchased her unit, plaintiff cannot now claim breach under the assignment. - New See York Railwavs Corporation v Savov Associates, Inc., 239 AD 504, 5 0 6 -507 ( I s t Dept 1933) ("It is a r u l e of law that if there is a lessee, and he has created an under-lease, or a n y other l e g a l interest, if the lease is forfeited, then the under-lessee, or the person who claims under the lessee, loses his e s t a t e as well as the lessee himself"). The fact that defendant, under the express terms of the offering plan, has rights to area of the roof originally -4- [* 5] I t referenced in the assignment does n o t change the analysis. The rights defendant has as a result of condominium ownership could n o t have been the subject of the assignment as they were created in the subsequent offering plan. Furthermore, the "roof rights" assigned by the defendant were terminated under the express terms of the Purchase Agreement. In accordance with the foregoing, it is ORDERED that defendant's motion to dismiss the complaint is GRANTED and the complaint is hereby DISMISSED in its entirety; and it is f u r t h e r ORDERED and A D J U D G E D that the Clerk is directed to enter judgment dismissing the action. This is the decision and order of the c o u r t . Dated: Mav 31, 2013 ENTER: -5-
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