2330 Ocean Assoc. LLC v. Haroun

2021 NY Slip Op 34052

Opinion

2330 Ocean Assoc. LLC v Haroun 2021 NY Slip Op 34052(U)

July 8, 2021

Supreme Court, Rockland County Docket Number: Index No. 030045/2021 E Judge: Rolf M. Thorsen

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.

FILED: ROCKLAND COUNTY CLERK 07/08/2021 05:27 PM INDEX NO. 030045/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 07/08/2021

SUPREME SUPREME COURT: STATE

STATE OF NEW YORK

OF NEW YORK

COUNTY COUNTY OF ROCKLAND

ROCKLAND

------------------------------------x ------------------------------------X To commence commence the statutory for appeals

statutory time

appeals as of right

period

time period

right (CPLR_

(CPLR.

5513[a])~ you are advised 5513[aJ), you advised to serve a serve a

2330 OCEAN ASSOCIATES LLC, OCEAN ASSOCIATES copy copy of this

this order, with

with notice

notice of

entry, upon

upon all parties.

parties.

Plaintiff, Plaintiff,

DECISION & DECISION & ORDER

ORDER

-against- -against-

Index Index No: 030045/2021

030045/2021 E

FARIDA HAROUN, FARIDA

Defendant. Defendant.

------------------------------------x ------------------------------------X

HON. ROLF HON. ROLF M.

M. THORSEN, A.J.S.C.

THORSEN, A.J.S.C.

In the wiwithin

thin action

action for,

for, inter

inter alia, breach

breach of contract

contract

seeking seeking monetary

monetary damages

damages for property

property damage

damage allegedly

allegedly caused

caused by

Defendant/Tenant, Defendant, Farida Haroun moves Defendant/Tenant, Defendant, Farida Haroun moves for the following following

relief: (1)

(1) an order, pursuant

pursuant to CPLR

CPLR §32ll{a)

S3211{a) (7),

(7), dismissing

dismissing the

complaint complaint for the failure failure to establish

establish the condition precedent for condition precedent

the commencement

commencement of the action action and to set forthforth sufficient sufficient facts

establishing establishing its claim

claim for intentional

intentional interference

interference withwith business business

relations, and, alternatively, relations, alternatively, (2)(2) an order order transferring

transferring the action

action

to Kings County

County Supreme

Supreme Court pursuant

pursuant to CPLR CPLR §510 S510 in the

interests interests of justice

justice and because

because of the location

location of the witnesses.

witnesses.

The Court

Court has considered

considered the following papers on the motion:

following papers motion:

1. 1. Notice of Motion,

Notice Motion, Affidavit Affidavit in Support

Support and Exhibits

Exhibits AA

through E through E· attached thereto and Affidavits attached thereto Affidavits of Facts;

2. 2. Affidavits in Opposition Affidavits Opposition and Affirmation Affirmation in Opposition;

Opposition;

3. 3. Affidavit in Reply;

Affidavit

4. 4. Notice of Rejection

Notice Rejection of Reply Affidavit; and Reply Affidavit;

5. 5. Memorandum of Law in Reply.

Memorandum

Plaintiff landlord Plaintiff landlord commenced commenced the present

present action t_o recover action to recover

monetary damages monetary damages from Defendant/Tenant.

Defendant/Tenant. Plaintiff alleges Plaintiff alleges the

following following facts in the complaint:

complaint: The subject

subject apartment leased to apartment leased

Defendant, located

located in Brooklyn,

Brooklyn, New York, was iri excellent physical in excellent physical

condition. condi tion. Defendant

Defendant caused

caused substantial physical damage substantial physical damage to the apartment. apartment. No construction work in the apartment construction work necessary, apartment was necessary,

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permitted.

requested, nor permitted. requested, Defendant had an obligation Defendant under the obligation under

reasonable condition and

apartment in aa reasonable maintain the apartment

lease to maintain condition Defendant breached Defendant Defendant has deliberately obligation. Defendant

breached that obligation. deliberately caused caused damage apartment, reported damage to the apartment, City damage to City

reported the damage

agencies as "violations," agencies "violations," which Plaintiff must which Plaintiff now defend, and must now

refused to allow refused Plaintiff into the apartment allow Plpintiff apartment to make repairs in make repairs

violations.

order to cure the violations. order Defendant apparently Defendant intended to apparently intended

interfere interfere with business and use of the apartment.

Plaintiff's business

with Plaintiff's apartment.

Plaintiff alleges Plaintiff three causes alleges three complaint. In action in the complaint.

causes of action Plaintiff seeks monetary

cause of action, Plaintiff the first cause damages in the monetary damages

sum of $150,000.00,

$150,000.00, plus punitive damages plus punitive damages for intentional intentional

interference interference with business relations.

with business relations. In the second cause of second cause

Plaintiff seeks $50,000.00 action, Plaintiff seeks $50,000.00 for property property damages.

damages. Finally,

in the third cause of action, Plaintiff third cause alleges Defendant Plaintiff alleges breached Defendant breached

his duty maintain the subject duty to maintain subject apartment condition and good condition

apartment in good

damages in excess

seeks damages $50,000.00.

excess of $50,000.00.

In lieu of an answer, Defendant filed the present answer, Defendant motion present motion

seeking seeking to dismiss complaint and, dismiss the complaint alternatively, and, al ternati vely, for the transfer of the action transfer County Supreme action to Kings County Supreme Court.

affidavit in support

In her affidavit motion, Defendant support of the motion, Defendant alleges, inter inter alia, the following:

following: A

A few days prior

prior to moving into the moving

subject apartment subject August 2020, she was advised apartment in August advised that landlord that the landlord

had not started

started repairs promised, including apartment, as promised,

repairs in the apartment, including painting the apartment, painting repairing a apartment, repairing bedroom floor, flood-damaged bedroom a flood-damaged

removing wood

and removing paneling. Since wood paneling. given a Since she had given deposit on the a deposit

apartment and had apartment had given 30-day notice given 30-day prior landlord, notice to her prior landlord, she moved apartment and accepted moved into the apartment accepted a $2,250.00 in credit of $2,250.00

a rent credit

making a

exchange for making exchange a limited limited number repairs, including number of repairs, removing including removing

some of the woodwood paneling, hiring a paneling, hiring installing aa new painter, and installing a painter,

floor surface

surface in the smaller smaller bedroom. mid-September, the bedroom. In mid-September, landlord hired a landlord hired replace a plumber to replace a plumber broken pipe section of broken a section under pipe under

containing the flood damage, and the plumber bedroom floor containing

the bedroom plumber left two significant

significant holes bathroom floors, bedroom and bathroom

holes in the bedroom

subflooring and joists, and through subflooring basement ceiling.

through the basement ceiling. After After

neither the plumber neither superintendent of the apartment plumber nor superintendent building apartment building

would would commit

commit to repairing

repairing the holes, Defendant Defendant and

and her partner

partner

reported holes to New York City. reported the holes An inspector inspector from New from the New

York City Department York City Department of Housing Preservation and Development Housing Preservation and Development inspected the apartment

( "HPD") inspected ("HPD") violations on the placed violations

apartment and placed

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apartment apartment for lead

lead paint

paint and highly

highly flammable

flammable drop

drop ceilings,

ceilings, which

which

concealed concealed flood damage

damage to the original

original ceilings

ceilings in the kitchen

kitchen and

and

smaller smaller bedroom.

bedroom. Despite

Despite the violations,

violation s, Defendant

Defendant continued

continued to

to

pay pay full

full rent, even

even though

though the landlord

landlord did not fix the violations, violation s,

except except for sending

sending an extermina tor.

exterminator.

Defendant Defendant further

further alleges

alleges that, on December December 21,21, 2020,

2020, she

she

filed filed aa proceeding

proceeding in CivilCivil Court, Kings Kings County,

County, Housing

Housing Part

Part by

by

Order Order to Show

Show Cause, which

which was made

made returnable

returnable on January

January 13,13, 2021.

2021.

In In support

support of the present

present motion, Defendant Defendant submits,

submits, inter

inter alia,

alia,

the the "Order

"Order to ShowShow _Cause ,Cause Directing

Directing the Correctio

Correctionn of Violations Violations"u

filed filed inin Civil

Civil Court, Kings Kings County, Housing Housing Part (Defendan

(Defendant'st's

Exhibits Exhibits B)B) and the parties'

parties' lease for the subjectsubject apartment apartment

(Defendan t's Exhibit (Defendant's Exhibit D).

D). Defendant

Defendant also alleges

alleges that

that the same

same day

day

she she filed

filed the Order

Order to Show

Show Cause, she was served served with

with the

the summons

summons

and and complaint

complaint in this action. In response response to the service

service ofof the

the

summons summons and

and complaint

complaint,, Defendant

Defendant filed aa demand demand for change

change ofof venue

venue

and and the present

present motion.

motion. Defendant

Defendant also alleges

alleges that

that after

after she

she

commenced commenced the proceedin proceedingg in the Civil

Civil Court, Housing

Housing Part,

Part, the

the

apartment apartment was reinspecte

reinspectedd by HPD and additiona additionall violations were violation s were

placed placed on the apartment

apartment..

With With respect

respect to aa motion

motion to dismiss,

dismiss, pursuant

pursuant CPLR

to CPLR

§32ll(a) (7), !;3211(a) (7), on the basis basis that the complaint

complaint fails to state state aa cause cause

of of action,

action, the moving

moving defendant

defendant must establish

establish that the the factual factual

allegation allegationss in the complaint complaint,, when taken

taken together,

together, fail to to state state aa

cause cause of

of action

action cognizabl

cognizablee at law.

law. See, Guggenhei mer v Ginsburg, 43 Guggenheimer v Ginsburg, 43 NY2d NY2d 268

268 (1977).

(1977). On aa motion

motion to dismiss

dismiss pursuant

pursuant to CPLR CPLR §3211, !;3211,

"the "the court

court must

must accept

accept the facts as alleged alleged in the complaint

complaint [or [or

pleading] pleading] as true, accord plaintiffs [or accord plaintiffs [or the proponent proponent of of the

the

pleading] pleading] the benefit benefit of every possible favorable every possible favorable inference inference,, and

and

determine determine only

only whether

whether the facts as alleged alleged fit within

within any

any

cognizable cognizable legal theory.'' Sokol v Leader, 74 AD3d legal theory." AD3d 1180, 1181 1181 (2d (2d

Dept 2q10) (Citations Dept 2010) (Citations and internal internal quotation

quotation omitted);

omitted); see, see, Leon

Leon vv

Martinez, Martinez, 8484 NY2d

NY2d 83,

83, 88 (1994);

(1994); Guggenhei

Guggenheimermer v.

v. Ginsburg,

Ginsburg, 43 43 NY2d

NY2d

at 275; Neuman at 275; Neuman vv Echevarria, Echevarria , 171 AD3d

AD3d 767,

767, 768 (2d(2d Dept 2019).

2019).

Plaintiff 's first cause Plaintiff's cause of action action for interferen

interference with

ce with

business business relations

relations must

must be dismissed

dismissed as the allegation allegationss inin the

the

complaint complaint,, even

even if true, are insufficie nt to state insufficient state aa cause cause ofof

action. action. "To prevail

prevail on aa cause

cause of action

action for tortious

tortious interferen

interferencece

with with business

business relations,

relations, aa plaintiff

plaintiff must

must prove

prove that

that it

it had

had aa

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business relationship business with aa third relationship with third party, that the defendant defendant knew

of that relationship

relationship and intentionally intentionally interfered with it, interfered with it, and that defendant's defendant's actions

actions were motivated

motivated solely

solely by malice

malice or otherwise

otherwise

constituted constituted illegal

illegal means, and that defendant's defendant's interference

interference caused

caused

injury injury to plaintiff's

plaintiff's relationship with the third relationship with party." 684 E.

third party." E.

222 Realty Co., 222"d Realty

nd Sheehan, 185 AD3d LLC v Sheehan,

Co., LLC AD3d 879, 879, 879-880

879-880 {2d(2d Dept

2020). Here, Plaintiff

Plaintiff failed

failed to allege that Defendant allege that Defendant induced induced aa

third party to end third party end its economic relationship with economic relationship with Plaintiff.

Plaintiff.

Moreover, Moreover, Plaintiff's

Plaintiff's second

secopd and third

thir~ causes

causes of action, whichwhich seek monetary

monetary damages breach damages for breach of the parties' lease based upon parties' lease based Defendant's Defendant's alleged damage to the apartment, alleged damage apartment, failure maintain failure to maintain

the apartment

apartment in aa reasonable reasonable condition

condition and failurefailure to allow allow

Plaintiff Plaintiff access

access to the apartment repair the damage, must apartment to repair must also be dismissed

dismissed since

since Plaintiff

Plaintiff failed to serve Defendant with aa serve Defendant

notice notice of default.

default. The terms of the parties' parties' leaselease require require

Plaintiff Plaintiff to provide

provide Defendant with notice Defendant with notice of default default as to the

default default of any term term or rule in the Lease, and provides provides Defendant Defendant

with aa time period

period to cure the default.default. See, Defendant's Defendant's Ex. Ex. D,

0,

~16. ~16. Accordingly, Defendant was entitled Accordingly, Defendant entitled to a a notice notice of default

default

and the opportunity

opportunity to cure the default, default, and such notice notice was aa predicate to the present predicate present action. See, Unicorn Unicorn 151 Corp.

Corp. v Small,

Small,

Misc

181 Misc 2d 304, 310-311 304, 310-311 (Civ Ct, Kings County Ct, Kings County 1999); see, Waring see, Waring

Barker Co. Barker Co. v Santiago, Santiago, NYLJ, Jan. 23, 1998 at 25, Jan. 23, 25, col colI 1 (App

(App Term

Term

1P' Dept)

st Dept) (Notice of cure required required by terms terms of lease before lease before

commencement commencement of nuisance nuisance holdover proceeding based holdover proceeding based on tenant's tenant's

failure to grant grant access access and offensive

offensive behavior against behavior against other other

building occupant); compare, building occupant); compare, 1540 Wallco, Inc.

Wallco, Inc. v Smith, 54 Misc 3d Smith, 54 Misc

1207 (A)

(A) (Civ

(Civ Ct, Bronx County

Ct, Bronx County 2017) (No notice to cure (No notice cure required required in

lease as predicate

predicate to proceeding

proceeding under nuisance).

under nuisance). In the absence absence

of a notice

notice to cure, the causes causes of action action for breach

breach of lease in

the complaint

complaint must

must be dismissed.

dismissed. See,See, Unicorn Unicorn 151 Corp.

Corp. v Small,

Small,

181 Misc

Misc 2d at 311.

Plaintiff's contention Plaintiff's contention that the Rent Stabilization Stabilization Code

Code does

not apply

apply to the ·present

present action

action is unavailing

unavailing insofar

insofar as the

parties' lease

lease gives Defendant the right to a gives Defendant a notice notice of default

default and

st

to cure. See,

See, 235 W.

W. 71

71 Units LLC

Units LLC v Zeballos,

Zeballos, 127 AD3d 489, 490 (1 AD3d 489, (1st

Dept 2015); Unicorn

Unicorn 151 Corp..

Corp.. v Small,

Small, 181 Misc

Misc 2d at at 310,

310,

quoting, quoting, Waring Barker Co., Waring Barker Co., NYLJ, Jan. 23, 23, 1998, at 25, 25, col col 1-2

1-2

(The (The Rent Stabilization

Stabilization Code establishes establishes minimum rights of tenants minimum rights tenants and does not preclude

preclude a a contract

contract that givesgives aa tenant tenant greater

greater

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rights). In any event, as asserted asserted by Defendant,

Defendant, the courtscourts have not countenanced

countenanced aa landlord

landlord seeking

seeking to avoid avoid the requirements requirements and

protections protections of the Rent Stabilization Stabilization Code, ·including including the service

service

of aa notice

notice to cure, by commencing commencing aa breach

breach of lease

lease action

action outside

outside

of an eviction

eviction proceeding

proceeding or proceedingproceeding to recover

recover possession,

possession, as

findings therein may have a collateral effect findings therein may have a collateral effect on aa subsequent subsequent

proceeding. proceeding. See, W.T. Glauber, 153 AD2d Assoc. vv Glauber,

W.T. Assoc. AD2d 538 (l" Dept 1989)

(lS'Dept

(Action seeking

seeking declaration

declaration of rights rights dismissed

dismissed since

since notice

notice

required required under

under Rent Stabilization

Stabilization Code Code was not served, and declaratory declaratory action

action was aa step to obtainingobtaining possession possession and would would allow allow landlord

landlord to circumvent

circumvent notice

notice requirement);

requirement); Kaycee W. W. 113 113'h

th

St. St. Corp.

Corp. vv Diakoff,

Diakoff, 160 AD2d

AD2d 573,573, 574 (Pt (lS' Dept 1990) (Action dismissed dismissed since

since notice

notice of termination

termination was aa predicate· predicate' to the

action, notwithstanding

notwithstanding that that aa .declaratory

declaratory judgment, not an judgment,

eviction, eviction, was sought);

sought); 200 E. 27 27'h LLC vv Schiffmiller-Nachshen, th LLC Schiffmi11er-Nachshen, 8 Misc 3d 345,

345, 348 (Sup(Sup Ct,

Ct, NY County

County 2005) (Action to recover recover fair market market value

value of rent-controlled

rent-controlled premise premise dismissed

dismissed as notice notice

required required by Rent Stabilization Stabilization Code Code was not served)._ served). Accordingly, Accordingly,

as the notice

notice of default

default and the opportunity opportunity to cure were were predicates predicates to an action action for breach breach of contract,

contract, the causes causes of action action which

which seek

seek monetary

monetary damages

damages for Defendant's

Defendant's alleged

alleged breach

breach

of contract

contract must

must bebe dismissed

dismissed pursuant

pursuant to CPLR CPLR §3211(a)

33211 (a) (7).

(7). See,

156-158 156-158 Second Ave., LLC v Delfino, Ave., LLC v Delfino, 18 Misc Misc 3d 1144(A)

1144 (A) (Civ Ct, NY-

Ct, NY

County County 2008) (Action seekingseeking possession possession dismissed

dismissed for failurefailure to state cause

cause of action

action where

where notice

notice to cure was not served served and suchsuch notice notice was aa predicate

predicate to the action).

Accordingly, Accordingly, this Court Court need not reach reach the parties'

parties'

contentions contentions with

with respect

respect to the transfer

transfer of venue. In any event, this Court

Court notes

notes that Plaintiff

Plaintiff maymay raise

raise its allegations

allegations as to

Defendant's Defendant's conduct

conduct alleged

alleged herein

herein as defenses

defenses in the pending

pending

proceeding proceeding in Civil

Civil Court, KingsKings County, Housing Housing Part. Further, Plaintiff may seek relief with respect to· Defendant's conduct Plaintiff may seek relief with respect to Defendant's conduct alleged alleged herein

herein in the Civil Civil Court, ~which "which has jurisdiction

jurisdiction over

landlord-tenant landlord-tenant proceedings proceedings and the ability ability to offeroffer complete complete

relief relief to the parties.

parties. Where

Where the Civil

Civil Court

Court can decide

decide the

dispute, it is desiiable

desiiable that the actionaction be brought court.H brought in that court."

Kaycee W.

W. 113th

113th St.

St. Corp.,

Corp., 160 AD2d

AD2d at 574; see, Post vv 120 E. End see, Post End .Ave.· Ave. Corp.,

Corp., 62

62 NY2d

NY2d 19,

19, 28 (1984).

(1984).

The parties'

parties' remaining

remaining contentions

contentions are without

without merit

merit or need

not be reached

reached by this Court.

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foregoing,

view of the foregoing, In view hereby it is hereby

ORDERED that the branch ORDERED motion seeking Defendant's motion

branch of the Defendant's seeking dismissal dismissal of the complaint complaint is granted,

granted, and the complaint complaint is

dismissed entirety; and it is further dismissed in its entirety; further

ORDERED branch of the Defendant's ORDERED that the branch motion seeking, as Defendant's motion

alternative relief, the transfer alternative venue is denied transfer of venue denied as moot.

The foregoing

foregoing constitutes

constitutes the Decision Decision and Order

Order of this

Court.

ENTER

Dated: July ~, 'b ,

2021

New City, New New York

New York

H N. ROLF M. THORSEN Acting Supreme Acting Court Justice Supreme Court Justice

TO: TO: NYSCEF

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