Trump Empire State Partners v. Empire State Building Associates

245 A.D.2d 188, 665 N.Y.S.2d 891, 1997 N.Y. App. Div. LEXIS 13134

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1997
• Status: Published

Opinion

—Order, Supreme Court, New York County (Edward Lehner, J.), entered October 29, 1996, which, to the extent appealed from, granted defendants’ motion to dismiss the complaint, unanimously affirmed, with costs.

The contract claims were properly dismissed because they will be addressed in other litigation (CPLR 3211 [a] [4]). Since substantial identity of parties (see, Employers Ins. v Primerica Holdings, 199 AD2d 178) and “essential” identity of issue (see, Parker v Rich, 140 AD2d 177) were demonstrated, dismissal of the agreement-based claims was a proper exercise of discretion (see, Morgulas v Yudell Realty, 161 AD2d 211, 212). The claims sounding in tortious waste are insufficient, since, inter alia, there has been no pleading of damage to the building that changes the nature of the property (see, Garland v Titan W. Assocs., 147 AD2d 304, 310). The claims based on Debtor and Creditor Law § 276 require a detailed pleading of fraud and the remaining claims to set aside conveyances required a “conveyance made without fair consideration” and the presence of “creditors and * * * other persons who become creditors during the continuance of [the subject] business” (Debtor and Creditor Law § 274), none of which plaintiff has pleaded adequately. We have considered plaintiffs remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Nardelli, Williams and Tom, JJ.