Segal Co. (Eastern States), Inc. v. 333W34 SLG Owner LLC

2018 NY Slip Op 116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 2018
• Docket: 5414 650244/15
• Status: Published

Opinion

Segal Co. (Eastern States), Inc. v 333W34 SLG Owner LLC (2018 NY Slip Op 00116)

Segal Co. (Eastern States), Inc. v 333W34 SLG Owner LLC

2018 NY Slip Op 00116

Decided on January 9, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 9, 2018
Tom, J.P., Kapnick, Webber, Oing, JJ.

5414 650244/15

[*1]The Segal Company (Eastern States), Inc., Plaintiff-Appellant,

v

333W34 SLG Owner LLC, Defendant-Respondent, ARC NY333W3401, LLC, et al., Defendants.

Zukerman Gore Brandeis & Crossman, LLP, New York (Ted Poretz of counsel), for appellant.

Stempel Bennett Claman & Hochberg, P.C., New York (Richard L. Claman of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 27, 2017, which, to the extent appealed from as limited by the briefs, dismissed the first cause of action of the second amended complaint, unanimously affirmed, with costs.

In May 2016, the court dismissed the causes of action asserted in the complaint and first amended complaint regarding tax escalation, but gave plaintiff leave to replead a claim for breach of the implied covenant of good faith and fair dealing, with specific instructions (cf. Sheppard v Coopers', Inc., 13 Misc 2d 862, 865 [Sup Ct, NY County 1956], affd 3 AD2d 909 [1st Dept 1957]). Plaintiff filed a notice of appeal from the 2016 order but failed to perfect its appeal.

The second amended complaint fails to comply with the directions in the 2016 order; therefore, the court properly dismissed the cause of action for breach of the implied covenant of good faith and fair dealing (see Sheppard v Coopers', Inc., 14 Misc 2d 180, 181 [Sup Ct, NY County 1957], appeal dismissed 7 AD2d 971 [1st Dept 1959], and 14 Misc 2d 211, 213 [Sup Ct, NY County 1958]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 9, 2018

CLERK