Jolly King Restaurant, Inc. v. Hershey Chan Realty, Inc.

Appellate Division of the Supreme Court of New York

Jolly King Restaurant, Inc. v. Hershey Chan Realty, Inc.

214 A.D.2d 422, 625 N.Y.S.2d 35, 1995 N.Y. App. Div. LEXIS 4383

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 18, 1995

StatusPublished

Cited by6 cases

This text of 214 A.D.2d 422 (Jolly King Restaurant, Inc. v. Hershey Chan Realty, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jolly King Restaurant, Inc. v. Hershey Chan Realty, Inc., 214 A.D.2d 422, 625 N.Y.S.2d 35, 1995 N.Y. App. Div. LEXIS 4383 (N.Y. Ct. App. 1995).

Pincite

Opinion

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about April 25, 1994, which denied plaintiff’s motion for a preliminary injunction, and, sua sponte, dismissed plaintiff’s first, second, third and sixth causes of action, unanimously modified, on the law, the facts and in the exercise of discretion, to grant plaintiff leave to replead its first cause of action so as to seek a declaratory judgment that defendant is obligated to repair roof leakage, and otherwise affirmed, without costs.

The causes of action alleging defendants’ fraudulent concealment of a plumbing defect in an upstairs apartment were properly dismissed for failure to plead, with the required particularity (CPLR 3016 [b]), that such concealment "thwarted [plaintiffs’] ability to satisfy themselves as to the quality of their bargain” (Scharf v Tiegerman, 166 AD2d 697, 698). Absent a duty to speak, nondisclosure does not ordinarily constitute fraud (see, e.g., Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 173 AD2d 203, 204). Nor did the IAS Court err in dismissing the cause of action for a declaratory judgment that defendant is not entitled to enforce the lease in question because of its own breach thereof, plaintiff’s claim that its loss of good will has left it without a damages remedy being belied by its own principal’s assertion of a dollar figure on such loss in his affidavit in support of the motion. However, in their settlement of the underlying summary proceeding in Civil Court, the parties appear to have preserved a narrow issue concerning responsibility for roof leaks, and we accordingly modify to permit plaintiff, if so advised, to replead the cause of action for declaratory judgment on that issue only. The Civil Court proceeding having been otherwise settled and terminated, all issues concerning it are academic (cf., Heller v Trustees of Town of E. Hampton, 198 AD2d 331). We have [423]*423considered plaintiff’s remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Wallach, Asch and Williams, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about April 25, 1994, which denied plaintiff’s motion for a preliminary injunction, and, sua sponte, dismissed plaintiff’s first, second, third and sixth causes of action, unanimously modified, on the law, the facts and in the exercise of discretion, to grant plaintiff leave to replead its first cause of action so as to seek a declaratory judgment that defendant is obligated to repair roof leakage, and otherwise affirmed, without costs.

The causes of action alleging defendants’ fraudulent concealment of a plumbing defect in an upstairs apartment were properly dismissed for failure to plead, with the required particularity (CPLR 3016 [b]), that such concealment "thwarted [plaintiffs’] ability to satisfy themselves as to the quality of their bargain” (Scharf v Tiegerman, 166 AD2d 697, 698). Absent a duty to speak, nondisclosure does not ordinarily constitute fraud (see, e.g., Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 173 AD2d 203, 204). Nor did the IAS Court err in dismissing the cause of action for a declaratory judgment that defendant is not entitled to enforce the lease in question because of its own breach thereof, plaintiff’s claim that its loss of good will has left it without a damages remedy being belied by its own principal’s assertion of a dollar figure on such loss in his affidavit in support of the motion. However, in their settlement of the underlying summary proceeding in Civil Court, the parties appear to have preserved a narrow issue concerning responsibility for roof leaks, and we accordingly modify to permit plaintiff, if so advised, to replead the cause of action for declaratory judgment on that issue only. The Civil Court proceeding having been otherwise settled and terminated, all issues concerning it are academic (cf., Heller v Trustees of Town of E. Hampton, 198 AD2d 331). We have [423]*423considered plaintiff’s remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Wallach, Asch and Williams, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

214 A.D.2d 422, 625 N.Y.S.2d 35, 1995 N.Y. App. Div. LEXIS 4383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jolly-king-restaurant-inc-v-hershey-chan-realty-inc-nyappdiv-1995.

Opinion

Related

Cite This Page — Counsel Stack