Enoteca, Inc. v New York Univ.

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Enoteca, Inc. v New York Univ. 2013 NY Slip Op 32324(U) September 25, 2013 Sup Ct, New York County Docket Number: 152421/2012 Judge: Eileen A. Rakower Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 09/27/2013 1] INDEX NO. 152421/2012 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/27/2013 SUP~EME PRESENT: COURT OF THE STATE OF NEW YORK NEW YORK COUNTY r· HON. EILEEN A. RAKOWER PART /5 Justice L Index Number: 152421/2012 ENOTECA, INC. INDEX NO. _ _ _ __ vs MonON DATE _ _ __ NEW YORK UNIVERSITY Sequence Number: Dot. MonON SEQ. NO. _ __ 007- REARGUMENT/RECONSIDERATION The following papers, numbered 1 to _ _ , were read on this motion to/for --------------- Notice of Motion/Order to Show Cause - Affidavits - Exhibits I No(s)"_..L'-I-:....._ __ 1 Answering Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ I No(s). _---"2~___ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ I No(s). -~'1--- Upon the foregoing papers, it is ordered that this motion is w u ~ C/) ::l "") o le w It: It: W u.. W It: .. >- ..J~ ..J Z ::l 0 u.. C/) C/) (!) C/) _ :: W ..J ..J I- c( U w .~ It: w Z It: C/) c( u Z o ~ o ~ 0 0 u.. w ::I: IIt: 0 u.. Dated: 9/.(, (/1 ~ -I_ "l.. 1. CHECK ONE, .......................................... ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 2 e HON. EIL~O~~I:~~:~~ "------. 0 0 0 CASE DISPOSED GRANTED 0 SETILE ORDER DDO NOT POST DENIED :S) ----.. ~ ,'!s.c. 0 0 GRANTED IN PART 0 OTHER SUBMIT ORDER o FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. EILEEN A. RAKOWER PART 15 Justice ENOTECA, INC., AND 129 MACDOUGAL STREET ASSOCIATES, INC., 152421/2012 INDEX NO. Plaintiff, MOTION DATE -v - 2 MOTION SEQ. NO. NEW YORK UNIVERSITY, MOTION CAL. NO. Defendants. The following papers, numbered 1 to _ _ were read on this motion for/to PAPERS NUMBERED 1 ,2 Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answer - Affidavits - EXhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Cross-Motion: Yes X __ I . . :. .3_ _ __ 4 No Presently before the Court is Plaintiffs' motion, pursuant to CPLR §2221 (a), seeking leave to Plaintiffs to reargue the Decision & Order ("Decision") dated May 6, 2013, and upon such leave, amending said Decision on the grounds that the Court misapprehended a certain fact. Plaintiffs seek only to reargue that part of the Decision which granted Defendant New York University's ("NYU") motion to dismiss the fourth cause of action in the Complaint for breach of contract as third party beneficiary. NYU opposes. CPLR §2221 (d) provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion ... " 1 [* 3] PlaintiffEnoteca, Inc. ("Enoteca") rents the building located at 131 MacDougal Street. Plaintiff 129 MacDougal Street Associates, Inc. owns the building located at 129 MacDougal Street. Defendant New York University owns the premises located 133-139 MacDougal where the subject construction took place, which Plaintiffs allege caused property damages to their respective properties. One seeking to maintain an action for breach of contract as a third party beneficiary must establish that: (1) there is an existing valid and binding contract between the signatories; (2) the contract was intended for the third party's benefit; and (3) the benefit to the third party is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate that party if the benefit is lost. (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 [2011]; Mendel v. Henry Phipps Plaza w., Inc., 6 NY3d 783, 787 [2006]). In their fourth cause of action, Plaintiffs plead that there is a binding agreement between NYU and the Community Board for the direct benefit of the local community, which plaintiffs identify as the NYU Community Board Agreement. Plaintiffs assert that the businesses and residents in the Community Board No.2 area were intended to be the direct beneficiaries of the Agreement. Further, plaintiffs allege that, being neighbors of NYU, they were included as the direct and intended beneficiaries of the Agreement. The minutes of the May 28, 2008 meeting which produced the alleged Agreement are attached to the complaint. With respect to Plaintiffs' fourth cause of action, while the Court correctly held that the Community Board Agreement was only intended to benefit those properties which were south and west of the Project, it incorrectly held that 129 and 131 MacDougal Street are north of the Project and that therefore could not be intended beneficiaries. Therefore, upon review of the Decision, the Court grants Plaintiffs leave to reargue that portion of the Decision that relates to the fourth cause of action, and upon such leave, amends said Decision to hold that the four comers of the Complaint state a cause of action for breach of contract as third party beneficiary. While NYU maintains that there was no express agreement signed by NYU as a result of the May 28, 2008 meeting, accepting the allegations of the Complaint as true as required upon a motion to dismiss, Plaintiffs' fourth cause of action is stated. 2 [* 4] Wherefore, it is hereby, ORDERED that Plaintiffs' motion for leave to reargue the Decision & Order dated May 6, 2013 is granted; and it is further ORDERED that the Decision & Order dated May 6, 2013 is amended to the extent that the fourth cause of action contained in the Complaint for breach of contract as third party beneficiary remains. This constitutes the decision and order of the court. All other relief requested is denied. S3?~ ___ Dated: r Check one: ~ HON. EILEEN A. RAKO~.~ FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: D DO NOT POST 3 D REFERENCE

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