Neuschotz v. Neuschotz

Appellate Division of the Supreme Court of New York

Neuschotz v. Neuschotz

126 A.D.3d 574, 3 N.Y.S.3d 581

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

DecidedMarch 19, 2015

Docket14560 311514/09

StatusPublished

This text of 126 A.D.3d 574 (Neuschotz v. Neuschotz) 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

Neuschotz v. Neuschotz, 126 A.D.3d 574, 3 N.Y.S.3d 581 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered July 11, 2013, which, to the *575 extent appealed from as limited by the briefs, denied defendant’s motion to dismiss the cause of action for breach of the implied covenant of good faith and fair dealing, unanimously affirmed, without costs.

Defendant was not entitled to dismissal of plaintiffs second cause of action for breach of the implied covenant of good faith and fair dealing. The allegations in the complaint, as bolstered by plaintiffs affidavit set forth actionable claims at this pleading stage (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).

Although the separation agreement afforded defendant the sole responsibility of selecting a suitable apartment, the implied covenant of good faith and fair dealing would prevent him from arbitrarily refusing to make such selection (see Dalton v Educational Testing Serv., 87 NY2d 384, 389 [1995]; Peacock v Herald Sq. Loft Corp., 67 AD3d 442, 443 [1st Dept 2009]). The issue of whether defendant acted arbitrarily or unreasonably in refusing to select a suitable apartment presents questions of fact that cannot be resolved on this motion to dismiss (see Peacock, 67 AD3d at 443).

We have considered defendant’s remaining contentions and find them unavailing.

Concur — Mazzarelli, J.P., DeGrasse, Richter and Feinman, JJ.

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Order, Supreme Court, New York County (Ellen Gesmer, J.), entered July 11, 2013, which, to the *575 extent appealed from as limited by the briefs, denied defendant’s motion to dismiss the cause of action for breach of the implied covenant of good faith and fair dealing, unanimously affirmed, without costs.

Defendant was not entitled to dismissal of plaintiffs second cause of action for breach of the implied covenant of good faith and fair dealing. The allegations in the complaint, as bolstered by plaintiffs affidavit set forth actionable claims at this pleading stage (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).

Although the separation agreement afforded defendant the sole responsibility of selecting a suitable apartment, the implied covenant of good faith and fair dealing would prevent him from arbitrarily refusing to make such selection (see Dalton v Educational Testing Serv., 87 NY2d 384, 389 [1995]; Peacock v Herald Sq. Loft Corp., 67 AD3d 442, 443 [1st Dept 2009]). The issue of whether defendant acted arbitrarily or unreasonably in refusing to select a suitable apartment presents questions of fact that cannot be resolved on this motion to dismiss (see Peacock, 67 AD3d at 443).

We have considered defendant’s remaining contentions and find them unavailing.

Concur — Mazzarelli, J.P., DeGrasse, Richter and Feinman, JJ.

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Bluebook (online)

126 A.D.3d 574, 3 N.Y.S.3d 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neuschotz-v-neuschotz-nyappdiv-2015.

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