Avramides v 319 E. 50th St. Owners Corp.

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Avramides v 319 E. 50th St. Owners Corp. 2017 NY Slip Op 31432(U) June 29, 2017 Supreme Court, New York County Docket Number: 653778/2016 Judge: David B. Cohen 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 07/06/2017 11:42 AM 1] NYSCEF DOC. NO. 17 INDEX NO. 653778/2016 RECEIVED NYSCEF: 07/06/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID BENJAMIN COHEN PART 58 --- Justice --------~---------------------------------------------------------------------~----X MICHAEL AVRAMIDES, ANNE BASCOVE INDEX NO. 653778/2016 Plaintiff, MOTION DATE MOTION SEQ. NO. -v319 EAST 50TH STREET OWNERS CORP., BEEKMAN HILL . CONDOMINIUM, 1/6/2017 001 DECISION AND ORDER Defendant. -------L--------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 1~, 15, 16 were. read on this application to/for Dismiss I Upon' the foregoing documents, it is Defendants' motion to dismiss pursuant to CPLR § 321 l(a)(S) and (7) is denied. As plaintiffs have withdrawn the third and fifth causes of action in the Complaint, all that remains is I the first, second and fourth causes of action. J In the Complaint, plaintiffs alleged that in con~ection with separate litigation Beekman Hill Condominium ("Beekman") entered into a settlement agreement in 2009 (the "2009 Settlement Agreement"). That matter involved the fact that plaintiff was being deprived of certain use of the roof (the "Roof Lease Area") under .a Roof Lease. Under the 2009 Settlement Agreement the parties agreed Beekman would perform work in the Roof Lease Area and that plaintiffs would be compensated for any deprivation of the Roof Lease Area caused by ., I 653778/2016 AVRAMIDES, MICHAEL vs. 319 EAST SOTH STREET OWNERS Motion No. 001 1 of 5 Page 1of5 [*FILED: NEW YORK COUNTY CLERK 07/06/2017 11:42 AM 2] NYSCEF DOC. NO. 17 INDEX NO. 653778/2016 RECEIVED NYSCEF: 07/06/2017 ,I Beekman' s required work on the roof in excess of 75 days in the form of a per diem rent I '' ,l I abatement. Plaintiffs allege that they were deprived of the use of the "Roof Lease Area" for f I . more:than150 days in excess of the 75-day limit and have yet to be compensated for this loss as f I required by the 2009 Settlement Agreement. Plaintiffs further states that Beekman has removed '[ I the recreational surface of the "Roof Lease Area" and erected a fence around the "Roof Lease f Areai', permanently depriving them the use of the leased space in breach of the parties' I agree'ments. I ! The Complaint further alleges that plaintiffs an,d 319 East 501h Street Owners Corp ("The I ' I . 1 Coop erative") are parties to another settlement agreement entered into in 2015 (the "2015 f : .1 1 Settl~ment Agreement"). In that agreement, the parties agreed that the plaintiffs would be i I responsible for certain work on a Greenhouse portion of the apartment unit, and the Cooperative .I I would be responsible for certain work on adjoining walls. The 2015 Settlement Agreement l I furth~r provided that the parties agreed to communicate and work in a good-faith manner to I complete the work quickly. Plaintiffs allege that they fulfilled their obligations as required by I , ,J the 2015 Settlement Agreement, but that the Cooperative refused to coordinate with plaintiffs I and did not complete the work required in the agreement, causing plaintiffs to incur additional I I expe~ses. ·f Defendants argue that, in a breach of contract action, "the complaint must, inter alia, set I ! forth ,the terms of the agreement upon which liability is predicated, either by express reference or i I by attaching a copy of the contract" (Chrysler CapitalCorp. v Hilltop Egg Farms, Inc., 129 i ' I AD2d 927, 928 [3d Dept 1987]). However the authorities supporting this statement in the I . I '· Chryller Capital Corp opinion expressly contradict defendant's position, holding that "plaintiff I . [is] not required to attach a copy of the contract or plead its terms verbatim" (Griffin Bros. v I I j 65377812016 AVRAMIDES, MICHAEL vs. 319 EAST 50TH STREET OWNERS Motion No. 001 2 of 5 Page 2 of 5 [*FILED: NEW YORK COUNTY CLERK 07/06/2017 11:42 AM 3] NYSCEF DOC. NO. 17 INDEX NO. 653778/2016 RECEIVED NYSCEF: 07/06/2017 Yatto,,68 AD2d 1009 [3d Dept 1979]; see also Lupinski v Vil. of Ilion, 59 AD2d 1050 [4th Dept ' ' I 1977]). In opposition to the motion, plaintiffs submitted a copy of the 2009 Settlement Agree'ment, the 2015 Settlement Agreement and original rooflease. The attachment of the vario~s settlement agreements and contracts put to rest, any challenge to plaintiffs' claims in the I complaint regarding the existence and the terms of the parities contracts. I 1 Defendants argue that plaintiffs' claim that Beekman breached the 2009 Settlement Agreement is time barred. Defendants base this argument solely on a readfng of the 2009 Settlement Agreement that presumes work was to begin immediately after execution. 1 If true, the deadline for work on the roof to be completed was 75 days after September 15, 2009 and, I since this action was filed more than six-years after that date, it is time barred under CPLR § ': I j i 213(2). However, defendants' argument is without merit. Paragraph 8 of the agreement does not I set a start date for the work, and a simple reading of Paragraph 8(a) indicates that work did not I ' commence immediately. Specifically, Paragraph 8(a) states "[plaintiffs], upon forty (40) days I I " prior:written notice from [Beekman], will remove, at plaintiffs' cost, the fence and air conditioning compressor unit located on the [rooflea~e area]". Clearly, work was not to start for at le~st forty days and work would only begin after the parties coordinated the air conditioning unit removal. Only then would the 75-day period for work run. Accordingly, any accrual of a i breach cause of action would occur 75 days after the ~tart of work. As defendants have not I presented any evidence of the actual start or completion date, at this juncture, the Court cannot j dete~mine that the work was completed more than six years prior to filing the Complaint. In addition, in opposition, plaintiff submitted an affidavit that the work started in 2011 and ended in j 1 Defendant did not submit any evidence of the actual start date and based its argument on its assumption of the start date. 653778/2016 AVRAMIDES, MICHAEL vs. 319 EAST SOTH STREET OWNERS Motion No. 001 3 of 5 Page 3 of 5 [*FILED: NEW YORK COUNTY CLERK 07/06/2017 11:42 AM 4] NYSCEF DOC. NO. 17 INDEX NO. 653778/2016 RECEIVED NYSCEF: 07/06/2017 2014, which both fall squarely within the applicable six-year statute oflimitations. Accordingly, I the motion to dismiss under CPLR § 321 l(a)(5) is denied. ! I ·' l When deciding a motion to dismiss pursuant t~ CPLR § 321 l(a)(7), the court should give the pleading a "liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference" (Landon v Kroll Lab. I I Specialists, Inc., 22 NY3d 1, 5-6 [2013]; see Faison v Lewis, 25 NY3d 220 [2015]). However, if a complaint fails within its four corners to allege the necessary elements of a cause of action, the claim must be dismissed (Andre Strishak & Assoc.:: P.C. v Hewlett Packard & Co., 300 AD2d 608 [2d Dept 2002]). The elements of a breach of contract claim are "the existence of a contract, the plaintiff's Ii performance pursuant to the contract, the defendant's breach of its contractual obligations, and I i damages resulting from the breach" (El-Nahal v FA Mgmt., Inc., 126 AD3d 667, 668 [2d Dept 2015]). Plaintiffs have clearly plead, in the Complaint, the necessary elements for each of the three breach of contract claims. Plaintiffs have properly plead the the existence of the 2009 and 'I ., 2015 Settlement Agreements, and pied the applicability of the Roof Lease Agreement. In the 2009 Settlement Agreement, plaintiffs and Beekman specifically agreed that they were parties to a lease agreement which granted the plaintiffs use of a section of the condominium roof and further agreed to renew the roof lease. Specifically, the 2009 Settlement Agreement references I . the Roof Lease Agreement and states "whereas, the [roof] Lease was assigned to, and assumed ' ' 1 by [Pl aintiffs]" and the parties agreed to renew the Roo.f Lease Agreement. ; Plaintiffs also properly plead breach and point to specific conduct which they allege i constitutes a breach of the various agreements. For the 2009 Settlement, plaintiffs claim the failure to reimburse plaintiffs for deprivation of the roof lease area in excess of 75 days. 653778/2016 AVRAMIDES, MICHAEL vs. 319 EAST 50TH STREET OWNERS Motiori:No. 001 4 of 5 Page 4 of 5 [*FILED: NEW YORK COUNTY CLERK 07/06/2017 11:42 AM 5] NYSCEF DOC. NO. 17 INDEX NO. 653778/2016 RECEIVED NYSCEF: 07/06/2017 Plaintiffs also allege in the Affidavit in Opposition that' the work began in 2011 and ended in ' 2014, depriving them of the use of the rooflease area during that time. Furthermore, plaintiffs allege' that after the work was complete, defendants removed the "recreational surface" on the roof l~ase area and erected a permanent fence in front of plaintiffs' access stairway, preventing access to the roof lease area in breach of both the 2009 Settlement Agreement and Roof Lease I. :1 Agreement. Similarly, plaintiffs allege specific conduct - failure to cooperate in good faith- 1 which they argue constitutes a breach of the 2015 settlement. Plaintiffs properly plead monetary dama~es associated with each instance of breach. ,, ' ! Since plaintiffs have alleged sufficient facts to constitute a breach of contract action for each bf the three contracts, the motion to dismiss purs~ant to CPLR § 321 l(a)(7) is denied. i I Accordingly, it is hereby ORDERED, that defendants' motion to dismiss is denied; and it is further ~ ORDERED, that the parties shall appear for a preliminary conference on August 16, 2017 at 9:30 AM, Part 58, Room 1164A, 111 Centre Street, New York, NY, 10013. This constitutes the decision and order of the Court. 6/29/2017 DATE CHECK ONE: CASE DISPOSED GRANTED D 1, DENIED ' ~ NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 653778/2016 AVRAMIDES, MICHAEL vs. 319 EAST SOTH STREET OWNERS Motion No. 001 5 of 5 D D OTHER REFERENCE Page 5 of 5

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