2330 Ocean Assoc. LLC v. Haroun

2021 NY Slip Op 34052

• Court: New York Supreme Court, Rockland County
• Decided: July 8, 2021
• Status: Unpublished

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 2 of 6 [* 2] Paae Paoe -2- FILED: ROCKLAND COUNTY CLERK 07/08/2021 05:27 PM INDEX NO. 030045/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 07/08/2021

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 proceeding- proceeding 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. 5 of 6 [* 5] Pae Paqe -5- FILED: ROCKLAND COUNTY CLERK 07/08/2021 05:27 PM INDEX NO. 030045/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 07/08/2021

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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