Park v Soho Room Group, LLC
Annotate this CaseDecided on June 20, 2013
Supreme Court, New York County
Douglas Park and Gnosh, INC., Plaintiffs,
against
Soho Room Group, LLC, Bill Gans, an individual, and Progressive Business Brokers, Defendants.
652561/11
For plaintiffs:
Stuart S. Perry, Esq.
Stuart S. Perry, PC
200 East 89th St., Ste. 11H
New York, NY 10128
212-516-697-3596
For defendant Soho Room Group, LL" target="_blank">See Vista Props., LLC v Rockland Ear, Nose & Throat Assocs., P.C., 60 AD3d 846 [2d Dept 2009] [plaintiff sought to enforce lease signed by defendant, and as defendant was party to be charged, fact that lease was not signed by plaintiff was immaterial; "absence of a signature by the party seeking to enforce the agreement is without legal significance"]).
The doubts expressed by Park in his July 11 email concerning the landlord's approval of the lease extension and problems with the liquor license are both self-serving and bereft of any support in the record. Rather, Mehler's responses of the same day conclusively contradict the assertions, thereby warranting the reasonable inference that it was Park alone who was seeking to back out of the deal, an inference borne out by plaintiffs' letter of the same day, based as well on nothing but Park's unwarranted and self-serving assumptions. Consequently, Park's denial that a meeting was scheduled for July 26 is immaterial.
Thus, even if the landlord did not grant the lease extension, Park offers no evidence that it was anything other than his failure to comply with her reasonable request to meet with his restaurant manager that resulted in the extension being withheld, if in fact it was. And, even if Park was induced into entering into the purchase agreement by virtue of Soho's misrepresentation of the hours of operation permitted by the liquor license, he offers no evidence that the hours were likely to be denied. Rather, Soho has demonstrated, by admissible evidence, that an amended liquor license was granted.
Soho has thus demonstrated, prima facie, that the modification agreement was in effect, that plaintiffs failed to comply with the landlord's reasonable request to meet with Park's daily restaurant manager, and that Soho did not terminate the agreement. Plaintiffs have not raised an issue of fact requiring a trial. Soho is entitled to judgment dismissing the action against it and judgment on its counterclaim permitting it to retain the down payment.
[*6]2. Plaintiffs' other claims
Having found that Soho is entitled to retain the down payment, the conversion claim is not viable. (See Green Complex, Inc. v Smith, 2013 WL 3023409, 2013 NY Slip Op 04575 [2d Dept 2013] [conversion claim dismissed as defendant was rightfully in possession of down payment]).
As plaintiffs have not claimed any damages distinct or different from those claimed in their breach of contract claim, and as the alleged misrepresentations are also pleaded as part of plaintiffs' breach of contract claim, the fraud, unjust enrichment, and breach of the duty of good faith and fair dealing claims are duplicative of the breach of contract claim. (Id. [unjust enrichment]; Carpenter v Plattsburgh Wholesale Homes, Inc., 83 AD3d 1175 [3d Dept 2011] [while plaintiffs asserted that defendant made false representations to them to induce them to purchase home, fraud claim as pleaded was indistinguishable from allegations made in breach of contract claim]; Manas v VMS Assocs., LLC, 53 AD3d 451 [1st Dept 2008] [plaintiff did not allege that she sustained any damages as result of defendants' fraud that would not be recoverable under breach of contract claim]; Nola Realty LLC v DM & M Holding LLC, 33 AD3d 523 [1st Dept 2006] [fraud]; Engelhard Corp. v Research Corp., 268 AD2d 358 [1st Dept 2000] [breach of duty of good faith and fair dealing]).
III. DEFENDANTS GANS AND PROGRESSIVE'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs' claim against defendants Gans and Progressive for tortious interference with contract is dismissed, based on the finding, supra, II.B.1., that plaintiffs breached the contract. (See Cantor Fitzgerald Assocs., L.P. v Tradition N. Am., Inc., 299 AD2d 204 [1st Dept 2002], lv denied 99 NY2d 508 [2003] [essential element of tortious interference claim is that breach of contract would not have occurred but for defendant's activities]).
I decline to award sanctions.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that defendant Soho Room Group LLC's motion for summary judgment is granted to the extent that:
(1)the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and
(2)judgment is granted on defendant's counterclaim to the extent of permitting it to retain plaintiffs' down payment as liquidated damages; it is further
ORDERED, that defendants Bill Gans and Progressive Business Brokers' motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendants 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.
ENTER:
[*7]
Barbara Jaffe, JSC
DATED:June 20, 2013
New York, New York
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