Salvator v 55 Residents Corp.

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Salvator v 55 Residents Corp. 2020 NY Slip Op 31986(U) June 15, 2020 Supreme Court, New York County Docket Number: 154509/2015 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] !FILED: NEW YORK COUNTY CLERK 06/24/2020 10: 12 AMJ INDEX NO. 154509/2015 RECEIVED NYSCEF: 06/24/2020 NYSCEF DOC. NO. 288 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART IAS MOTION 47EFM Justice -------------------------------------------------------------------------------X SCOTT SALVATOR, INDEX NO. 154509/2015 MOTION DATE Plaintiff, 007 MOTION SEQ. NO. -v55 RESIDENTS CORP., BOARD OF DIRECTORS OF 55 RESIDENTS CORP., AND AKAM ASSOCIATES, INC., DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 007) 228-248, 251-273, 276-282 were read on this motion to/for DISMISS/SUMMARY JUDGMENT Plaintiff Scott Salvator, the owner of a unit in a cooperative building owned and managed by defendants, commenced this action in May 2015 seeking injunctive relief and money damages for water damage and mold growth in his apartment caused by an allegedly undersized drain on the landing outside of his apartment. Plaintiff then filed an amended complq.int in February 2017 in which he also alleges a problem with an illegal laundry vent located near his bedroom window. By order dated January 9, 2019, this court granted in part plaintiff's motion to serve a second amended complaint to the extent he sought to assert additional allegations regarding defendants' replacement of the drain in June 2017, and to add a claim for trespass based on defendants' entry and repairs to plaintiffs apartment in March 2018. The court denied plaintiffs motion to the extent he sought to assert a claim for intentional infliction of emotional distress and denied, without prejudice, defendants' cross-motion to dismiss the complaint. After answering the second amended complaint, defendants now move pursuant to CPLR 3211 and CPLR 3212 to dismiss all claims against the managing agent, defendant Akam Page 1 of5 1 of 5 [* 2] (FILED: NEW YORK COUNTY CLERK 06/24/2020 10:12 A~ INDEX NO. 154509/2015 RECEIVED NYSCEF: 06/24/2020 NYSCEF DOC. NO. 288 Associates, and to dismiss the trespass and breach of fiduciary duty claims against all defendants. Plaintiff opposes the motion and cross-moves to renew his motion to amend to assert a claim for intehtional infliction of emotional distress and to strike defendants' answer based on their alleged failure to timely serve plaintiff with the expert report of Rand Engineering dated April 10, 2018. Tutning first to defendants' motion, defendants argue that plaintiffs trespass claim must be dismissed because defendants' entry into plaintiffs apartment in March 2018 was authorized under the lease. Paragraph 25 of the lease provides that the cooperative and its agents have the right to enter plaintiffs apartment at a reasonable time upon notice in order to make repairs. Affirmation of Chad E. Sjoquist dated October 15, 2019, Exh. P, para. 25. Here, defendants notified plaintiff of their intention to enter his apartment on March 26, 2018, by sending a letter to plaintiffs counsel. Sjoquist Aff., Exh. R. Plaintiff argues that defendants' entry was unauthorized because defendants did not send the letter to plaintiffs address at the building by registered mail, as required by the lease. Sjoquist Aff., Exh. P, para. 27. However~ as defendants point out, their service to plaintiffs counsel was reasonable under the circumstances given that the parties were in the midst of litigation and defendants' counsel was prohibited from communicating directly with plaintiff. Further, defendants were aware that plaintiff did not reside in the unit and they wanted to ensure that plaintiff received actual notice oftlieir intention to enter the apartment, which cannot be disputed given that plaintiffs counsel responded to the letter. Sjoquist Aff., Exh. S. To the extent that plaintiff complains about the workmanship of defendants' repairs, these allegations are insufficient to state a claim for trespass. See Community Counseling & Mediation Services v. Chera, 95 A.D.3d 639, 639-640 (1 51 Dep't2012). Accordingly, plaintiffs trespass cause of action will be dismissed. Page 2 of 5 2 of 5 [* 3] !FILED: NEW YORK COUNTY CLERK 06/24/2020 10: 12 AMJ INDEX NO. 154509/2015 RECEIVED NYSCEF: 06/24/2020 NYSCEF DOC. NO. 288 With respect to the breach of fiduciary claim, defendants argue that this claim should be dismissed as duplicative of the breach of contra.ct.claim because it arises out of the same allegations and seeks the same damages. "It is well-settled that the same conduct which may constitute the breach of a contractual obligation may also constitute the breach of a duty arising out of the ·relationship created by contract but which is independent of the contract itself." 37 East 501h Street Corp. v. Restaurant Group Management Services, 156 A.D.3d 569, 570-71 (I st Dep 't 2017) (citing Mandleblatt v. Devon Stores, 132 A.D.2d 162, 167-68 (P1 Dep't 1987)). Here, plaintiff's breach of fiduciary claim is not duplicative of the breach of contract claim because the breach of fiduciary duty claim is asserted only as against defendant Board of Directors, which is not bound by the proprietary lease. Accordingly, plaintiffs breach of fiduciary claim not be dismissed. Finally, defendants argue in support of their motion that all of the claims asserted against defendant Akarn Management must be dismissed because it was acting as an agent for a disclosed principal and it did not exercise complete and exclusive control of the building. It is wellestablished that a managing agent of a building owner generally may not be held liable for breach of the owner's contractual duties since it is acting as an agent for a disclosed principal. Brasseur v. Speranza, 21 A.D.3d 297, 299 (1st Dep't 2005). Other than the second cause of action for an injunction, which appears to be moot given defendants' repairs, plaintiffs remaining claims against defendant Akam ate based on breach of contract. Sjoquist Aff., Exh. C (Second Amended Complaint, paras. 58-73, 86-98). Accordingly, the claims against defendant Akam must be dismissed. Turning to the cross-motion, plaintiff moves to renew its motion to amend to assert a claim for intentional infliction of emotional distress. Plaintiffs motion is based on newly discovery evidence from non-party Rand Engineering, which was retained by defendants. In the non-party Page 3 of 5 3 of 5 [* 4] (FILED: NEW YORK COUNTY CLERK 06/24/2020 10:12 A~ INDEX NO. 154509/2015 RECEIVED NYSCEF: 06/24/2020 NYSCEF DOC. NO. 288 deposition of Rand Engineering held on July 16, 2019 and the Rand report dated April 10, 2018, but not provided to plaintiff until June 3, 2019, plaintiff lear11ed that Rand Engineering had informed defendants that, in its opinion, the laundry vent located below plaintiffs apartment was illegal and should be removed. However, this evidence does not change the calculus and plaintiffs proposed claim for intentional infliction of emotional distress remains insufficient as a matter of law. Baker v. 16 Sutton Place, 2 A.D.3d 119, 121 (JS 1 Dep't 2003). Further, plaintiff's request for the drastic Sanction of striking a pleading must be denied. Not only has plaintiff failed to submit an affirmation of good faith as required under Uniform Rule 202.7, plaintiff fails to show that it was prejudiced by defendant's alleged delay in producing this report, particularly given defendants' production of other material from Rand Engineering in January 2019. Accordingly, it IS ORDERED that defendants' motion is granted to the extent that the fifth cause of action for trespass is dismissed and the second amended complaint is dismissed as against defendant Akrun Management, and is otherwise denied; and it is further ORDERED that plaintiffs cross-motion is denied; and it is fµrther ORDERED the complaint is dismissed as against defendant Akam Management and the Clerk shall enter judgment accordingly, with costs and disbursements awarded to said defendant; and it is further ORDERED that the caption shall be amended to remove defendant Akam Management and all subsequent pleadings and papers filed in this action shall bear the amended caption; and it is further Page 4 of 5 4 of 5 [*[FILED: 5] NEW YORK COUNTY CLERK 06/24/2020 10: 12 AM] NYSCEF DOC. NO. 288 INDEX NO. 154509/2015 RECEIVED NYSCEF: 06/24/2020 ORDERED that movant is directed toe-file a "Notice to County Clerk'' form (Form EF22, available on NYSCEF) attached to a copy of this order with notice of entry for the County Clerk who shall mark the records to reflect the amended caption. ---~~~ DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED SETTLE ORDER GRANTED IN PART SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 5 of 5 5 of 5

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