Preview
INDEX NO. 151313/2014
FILED: NEW YORK COUNTY CLERK 11/26/2014 04:16 PM
NYSCEF DOC.- NO. 100 RECEIVED NYSCEF 11/26/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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HELEN SILLER,
E-filed
Plaintiff,
Motion Sequence 004
- against -
Index No. 151313/2014
THE THIRD BREVOORT CORPORATION,
Oral Argument Requested
DIANE C. NARDONE, CLIFF RUSSO, ELIZABETH
LOUIE, ANDREW BAUM, GEORGE ALOI, CHRISTINE
BECK, BONNIE HILLER, MORTIMOR C. LAZARUS,
JANE WARREN, JOHN C.WOELL, AND BARBARA
EISENBERG,
Defendants.
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DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO
DISMISS THE SECOND AMENDED VERIFIED COMPLAINT
ABRAMS GARFINKEL MARGOLIS BERGSON, LLP
1430 Broadway, 17th Floor
New York, New York 10018
(212) 201-1170
Attorneys for Defendants
Table of Contents
PRELIMINARY STATEMENT
A. Background
B Summary of Argument
STATEMENT OF FACTS
ARGUMENT.
I THE COMPLAINT SHOULD BE DISMISSED AS TO THE INDIVIDUAL
DEFENDANTS
IL PLAINTIFF'S FIRST CLAIM FOR DECLARATORY AND INJUNCTIVE
RELIEF FAILS TO STATE A CAUSE OF ACTION
IIL. PLAINTIFF'S SECOND CLAIM FOR DECLARATORY AND INJUNCTIVE
RELIEF FAILS TO STATE A CAUSE OF ACTION 11
IV. PLAINTIFF'S THIRD CLAIM FOR PRIMA FACIE TORT AGAINST
NARDONE SHOULD BE DISMISSED 13
PLAINTIFF'S FOURTH CAUSE OF ACTION FOR TORTIOUS
INTERFERENCE WITH CONTRACT SHOULD BE DISMISSED 15
Vi PLAINTIFF'S FIFTH CLAIM FOR ATTORNEYS' FEES AND EXPENSES
SHOULD BE DISMISSED 17
VIL PLAINTIFF'S SIXTH CLAIM FOR BREACH OF CONTRACT FAILS TO
STATE A CAUSE OF ACTION AND SHOULD BE DISMISSED 17
A The Governing Documents 18
1 The Offering Plan 18
2 The By-Laws 18
The 1985 House Rules teseees 18
The 1990 Alteration Agreement 19
The Lease ... 20
The January 26, 2010 and March 1, 2012 Amended House Rules 21
The House Rules Concerning Washing Machines and Dryers Comply
with the Offering Plan, By-Laws, Lease, and Alteration Agreement
and Plaintiff Has Failed to Establish Any Breach Thereof by the Co-op 21
Plaintiff's Claims are Barred By The Release 23
Plaintiff Failed to Give The Required 30-Day Notice Prior to Filing
This Action .. 24
Vill. PLAINTIFF'S SEVENTH CLAIM FOR DAMAGES UNDER JUDICIARY
LAW §487 FAILS TO STATE A CLAIM. 24
IX. THE COMPLAINT IS BARRED BY THE BUSINESS JUDGMENT RULE 26
PLAINTIFF'S EIGHTH CLAIM FOR PROPERTY DAMAGE SHOULD
BE DISMISSED. 27
CONCLUSION 28
i
Table of Authorities
Cases Page(s)
20 Pine Street Homeowners Assoc. v. 20 Pine Street LLC,
109 A.D.3d 733, 971 N.Y.S.2d 289 (1st Dept. 2013) ceseeeeeneeeerseersceaenseeseeseesserseeneeeeenseeee
81 Bowery Realty Corp. v. Qui Hui Chen,
No. 106565/05, 2008 WL 2447335 (Sup. Ct., N.Y. County, June 18, 2008) tees 12
2626 Bway LLC y. Broadway Metro Assocs., LP,
No. 105586/2010, 2011 WL 3631959 (Sup. Ct. N.Y. County, August 11, 2011) ..15, 16
24/7 Records, Inc. v. Sony Music Entertainment, Inc.,
566 F.Supp.2d 305 (S.D.N.Y. 2008) deteetaetaeeeeeeeeeeeeseeeeeeeee steeeeeeeeestensenessneeseeatene 16
Allen v. Murray House Owners Corp.,
174 A.D.2d 400, 571 N.Y.S.2d 698 (1* Dep’t 1991) ceseeeeeeneceeeeeeeeesaeeaeenegeseeaeensesseeneen 26
Alliance Network, LLC v. Sidley Austin LLP,
No. 653731/2012, 2014 WL 1258222
(Sup. Ct., N.Y. County March 20, 2014) ....c.cceecseessesessesseesseessesstssnessessesssesseesesePQSSHM
Anonymous v. Axelrod,
92 A.D.2d 789, 459 N.Y.S.2d 778 (1% Dep’t 1983) teseeeeeeeseecsesseeeterseseeaeteates 9, 10, 12
Balk v. 125 W. 92" St. Corp.,
24 A.D.3d 193, 806 N.Y.S.2d 31 (1st Dep’t 2005) ceeeaeeeeeeeteceteeenesaesaeeaeeacesesseeeserseeeeraee
Barbour v. Knecht,
296 A.D.2d 218, 743 N.Y.S.2d 483 (1* Dep’t 2002) ceeneeaeeaeteeeeeaeeeseeeesecaeesseeeeeesesseeaee 27
Barker y. Time Warner Cable, Inc.,
No. 016438/08, 2009 WL 1957740 (Sup. Ct., Nassau County July 1, 2009). 9, 10, 12
Biondi v. Beekman Hill House Apartment Corp..
257 A.D.2d 76, 692 N.Y.S.2d 304 (Ist Dep’t 1999) .
Bishop v. Maurer,
33 A.D.3d 497, 823 N.Y.S.2d 366 (1st Dep’t 2006) see ceesenseeseesseeaeesatesersneeeeenens
Cannings v. East Midtown Plaza Housing Co., Inc.,
No. 401071/10, 2011 WL 5142033 (Sup. Ct., N.Y. County, Oct. 18, 2011) 26
Cannon Point North, Inc. v. Abeles,
160 Misc. 2d 30, 612 N.Y.S.2d 289 (App. Term., 1 Dep’t, 1993) seeteeeeeeeeaseeeeesees 12,27
2
iti
Curiano v, Suozzi,
63 N.Y.2d 113 (1984) 13
Deer Consumer Products Inc. v. Little,
No. 650823/2011, 2011 WL 4346674 (Sup. Ct. N.Y. County, Aug. 31, 2011) . .
East 41" Street Assocs. V. 18 East 42"™ Street, L.P.,
248 A.D.2d 112, 669 N.Y.S.2d 546 (1% Dep’t 1998) 11, 12
Gertler v. Goodgold,
107 A.D.2d 481, 487 N.Y.8.2d 565 (1 Dep’t 1985) 13, 14
Ginsberg v. Ginsberg,
84 A.D.2d 573, 443 N.Y.S.2d 439 (2d Dep’t 1981) 13
Guggenheimer v. Ginzburg,
43 N.Y.2d 268, 401 N.Y.S.2d 182 (1977)
Havell v. Islam,
292 A.D.2d 210, 739 N.Y.S.2d 371 (1 Dep’t 2002) 13
Israel vy. Wood Dolson Co.,
1N.Y.2d 116, 151 N.Y.S.2d 1 (1956)...
eee 15, 16
Jack L. Inselman & Co., Inc. v. FNB Financial Co.,
41 N.Y.2d 1078, 396 N.Y.S.2d 347 (1977) 15
Lama Holding v. Smith Barney Inc.,
88 N.Y.2d 413, 646 N.Y.S.2d 76 (1996) 15, 16
La Potin v. Julius Lang Co.,
30 A.D.2d 527, 290 N.Y.S.2d 619 (1" Dep’t 1968) 8,9
Levandusky v. One Fifth Avenue Apt. Corp.,
75 N.Y.2d 530, 553 N.E.2d 1317, 554 N.Y.S.2d 807 (1990), 26
Levine v. Yorkell,
245 A.D.2d 138, 665 N.Y.S.2d 962 (1st Dep’t 1997) 16
Maksimiak v. Schwartzapfel Novick Truhowsky Marcus, P.C.,
82 A.D.3d 652, 919 N.Y.S.2d 330 (1st Dep’t 2011) 24
NBT Bancorp Inc. v. Fleet/Norstar Financial Group, Inc.,
87 N.Y.2d 614, 641 N.Y.S.2d 581 (1996) 15
Iv
O'Donnell, Fox & Gartner, P.C. v. R-2000 Corp.,
198 A.D.2d 154, 604 N.Y.S.2d 67 (1 Dept. 1993)
Peyton v. PWV Acquisition LLC,
No. 111379/11 2013, WL 2165330 (Sup. Ct. N.Y. County May 20, 2013). 10, 13
Scott v. Bell Atl. Corp.,
282 A.D.2d 180, 726 N.Y.S.2d 60 (Ist Dep’t 2001)..
Sullo v. Margab Realty, LLC,
No. 109246/07, 2008 WL 2699542 (Sup. Ct., N.Y. County June 11, 2008).......9, 10, 12
Tri- County Motors, Inc. v. American Suzuki Motor Corp.,
494 F.Supp.2d 161 (E.D.N.Y. 2007) 16
Vigoda v. DCA Prod. Plus, Inc.,
293 A.D.2d 265, 741 N.Y.S.2d 20 (1" Dep’t 2002) 13
PRELIMINARY STATEMENT
Defendants The Third Brevoort Corporation (the “Co-op”), Diane C. Nardone
(“Nardone”), Cliff Russo, Elizabeth Louie, Andrew Baum, George Aloi, Christine Beck, Bonnie
Hiller, Mortimor C. Lazarus, Jane Warren, John C. Woell and Barbara Eisenberg (collectively,
the “Individual Defendants”, and together with the Co-op and Nardone, the “Defendants”)
respectfully submit this memorandum of law in support of their motion, pursuant to C.P.L.R. §
3211(a)(1) and 3211(a)(7), to dismiss plaintiff Helen Siller’s (“Plaintiff’) Second Amended
Verified Complaint (“Complaint”) in this action, dated October 21, 2014. (Margolis Aff. Ex.
A).
In an action that has become a bitter, retaliatory and vindictive quest by the Sillers to
malign Nardone for their laundry room inconvenience, Plaintiff has filed her latest iteration of
the Complaint making colorful but wildly speculative and absurd allegations that Nardone
personally denied Plaintiffs request to install the new washer/dryer she prefers for her apartment
because Nardone will somehow receive a “benefit” from a building engineer. (Compl §{4-5).
These irresponsible allegations do not state a viable cause of action against Nardone under any
legal theory. Plaintiff's Complaint, like the prior versions, should be dismissed in all respects as
against all Defendants because it asserts substantially the same ‘facts’ and legally deficient
causes of action.
Background
On February 14, 2014, Plaintiff filed the original complaint (“Original Complaint”) in
this action against the Co-op, seeking various forms of declaratory and injunctive relief and
damages concerning the Co-op’s alleged breach of two proprietary leases (together, the “Lease”)
' Citations to “Margolis Aff.” refer to the Affirmation of Barry G. Margolis, dated November 26, 2014 submitted
herewith. Citations to “Compl.” refer to Exhibit A to the Margolis Aff. The factual allegations in the Complaint are
accepted as true for the purpose of this motion to dismiss only, except where flatly contradicted by documentary
evidence.
for combined apartments 12R and 12T (together, the “Unit”) in the building owned by the Co-op
located at 9-21 Fifth Avenue, New York, New York and known as The Brevoort (“Building”).
Plaintiff's husband-counsel, Stephen I. Siller, Esq. (“Mr. Siller”) also resides in the Unit with
Plaintiff. The gravamen of the Original Complaint was that the Co-op allegedly breached the
Lease and other documents by refusing to allow Plaintiff to replace her broken clothes washer
with a new washer and outdoor-venting gas dryer of her choice because, among other reasons,
outdoor-venting gas dryers do not comply with house rules promulgated by the Co-op’s board of
directors (the “Board”) in 2010, over four (4) years prior to Plaintiff's washer/dryer falling into
disrepair. Mrs. Siller, individually, was the sole named plaintiff and the Co-op was the sole
named defendant in the Original Complaint.
In a misguided attempt by Plaintiff's overzealous and self-interested husband-counsel to
strong-arm the Board and “throw the first punch” in this washer/dryer dispute, Plaintiff filed a
frivolous motion by order to show cause seeking a temporary restraining order and preliminary
injunction affirmatively ordering the Co-op to allow Plaintiff to replace her broken machine with
a washer and outdoor-venting gas dryer of her choice, notwithstanding any noncompliance with
Co-op house rules or procedures. By Order dated March 17, 2014, the Court properly denied
Plaintiff's request for a temporary restraining order and her request for a preliminary injunction,
holding that Plaintiff failed to meet her burden of establishing irreparable harm. (NYSCEF Doc.
No. 31).2 There is a fully functional laundry room (the “Building Laundry Room”) in the
basement of the Building for the common use of all residents.
2 Had Plaintiff moved forward with the steps necessary to obtain and install a Board-approved washer and dryer —
rather than joining Mr. Siller in wasting judicial resources and attempting to intimidate the Board with a frivolous
application for “emergency” relief, Plaintiff likely could have been using a brand new washing machine and dryer
(albeit a self-venting one) in her Unit months ago.
Frustrated with their failure to obtain a preliminary injunction, and in a transparent
attempt to harass and intimidate Defendants, Plaintiff filed a First Amended Verified Complaint
(“First Amended Complaint”) purporting to bring claims both individually and derivatively as a
shareholder on behalf of the Co-op, against the Co-op and eleven (11) individual, present and
former Board Members, notwithstanding the absence of any contractual relationship between
Plaintiff and these individuals concerning her unit, her appliances or otherwise. The First
Amended Complaint alleged fifteen (15) improperly intermingled direct and derivative claims
for relief and sought, inter alia, $2 million in “damages.”
On May 12, 2014, before the mutually agreed upon deadline for Defendants to respond to
the First Amended Complaint, Plaintiff filed a frivolous and procedurally defective pre-joinder
motion for partial summary judgment on her then-inoperative Original Complaint. This ruse,
designed to distract the Court from the threshold legal deficiencies in Plaintiff's First Amended
Complaint was not successful. By Decision and Order dated September 22, 2014, the Court
denied Plaintiff's Motion for Partial Summary Judgment and granted Defendants’ Motion to
Dismiss the First Amended Complaint, “dismissing [the] action without prejudice unless
[Plaintiff] replead[s] it within 30 days.” (NYSCEF Doc No. 86). The October 21, 2014
Complaint was served/filed thereafter.
Summary of Argument
As a threshold matter, the Complaint should be dismissed in all respects as against the
Individual Defendants. Although each of the eight causes of action in the Complaint is labeled
as being asserted only against the Co-op, Nardone, or both of them, Plaintiff nevertheless lists
the Individual Defendants in the caption and refers to them as “Defendants.” (Compl 4 9).
Plaintiff concedes that the Individual Defendants were solely “named as defendants to derivative
claims pled in the First Amended Complaint” and that “[t]his Second Amended Complaint no
longer includes those derivative claims.” (Compl. 9). Yet, apparently for no reason other than
pure harassment, Plaintiff continues to attempt to burden Nardone and the Individual Defendants
with this action. Plaintiff does not and cannot allege any causes of action against the Individual
Defendants. Accordingly, the Complaint should be dismissed as against the Individual
Defendants.
Plaintiff's First and Second Causes of Action for various declaratory judgments and
injunctive relief should be dismissed because a party may not seek a declaratory judgment where
it has other available remedies or it merely seeks a declaration of the same rights and obligations
asserted in other causes of action. Moreover, to the extent Plaintiff purports to seek declaratory
relief under RPAPL § 1515, her claims should be dismissed because the Complaint does not
allege the requisite claim to property as it is undisputed that the Co-op is the fee simple owner of
the Building. Plaintiff's demand for injunctive relief should be dismissed because injunctive
relief is simply not available when the plaintiff does not have any remaining substantive cause of
action. Furthermore, Plaintiff cannot allege the requisite irreparable harm and absence of a legal
remedy, which are both necessary to state a cause of action for a permanent injunction.
Plaintiff's Third Cause of Action for prima facie tort against Nardone should be
dismissed because Plaintiff improperly attempts to use this claim as a catch-all alternative for her
other unsustainable causes of action. Plaintiff also fails to allege special damages because no
“actual losses” are alleged with specificity or otherwise that are causally attributable to any
alleged tortious conduct by Nardone. In addition, Plaintiff cannot allege that Nardone was solely
motivated by disinterested malevolence.
Plaintiff's Fourth Cause of Action for Tortious Interference with Contract against
Nardone should be dismissed because where there is no breach of contract, as is the case here,
there can be no tortious interference with contract as a matter of law. Furthermore, the changes
to the House Rules that Plaintiff alleges constituted a breach of contract were expressly
contemplated by her Lease with the Co-op, and Plaintiff has failed to allege any actual damages
sustained as a result of any conduct of Nardone. Indeed, the 2010 and 2012 House Rules
Plaintiff complains of were adopted long before Plaintiff's washing machine broke in 2014.
Plaintiff's Fifth Cause of Action for attorneys’ fees and expenses should be dismissed
because the statutes relied upon by Plaintiff simply do not provide for an award of attorneys’ fees
in the circumstances presented here.
Plaintiff's Sixth Cause of Action for breach of contract should be dismissed because there
was no breach by Defendants. As clearly demonstrated by the governing documents including
the Co-op offering plan (“Plan”), by-laws (“By-Laws”), various house rules, Plaintiff's Lease
and Plaintiff's 1990 alteration agreement with the Co-op, which are expressly referenced in the
Second Amended Complaint and can be considered on this motion to dismiss despite Plaintiffs
failure to attach them to the Second Amended Complaint, Plaintiff had no contractual
grandfathering clause or property interest giving her the right to install any particular washing
machine and dryer of her choosing a quarter-century after her now-defunct machine was
allegedly first approved in 1990. To the contrary, the Plan and Bylaws state that any installation
of a new washing machine or dryer would require the written consent of the Board and that the
Board had the power to make or change house rules (which are incorporated into the Lease) at
any time. Moreover, Plaintiff failed to comply with the contractually mandated notice
requirements prior to filing this action which is, therefore a breach of the Lease. Plaintiff's
Seventh Cause of Action for violation of Judiciary Law § 487 against Nardone should be
dismissed because even assuming arguendo that the Nardone Aff? contained false statements,
* Citations to “Nardone Afi refer to the previously filed Affirmation of Diane C. Nardone In Opposition to Order
To Show Cause, dated February 17, 2014. (NYSCEF Doc. No. 9). The Nardone Aff. is resubmitted herewith as
Exhibit G to the Margolis Aff.
Plaintiff suffered no injury from any statement made in the Nardone Aff. The Court denied
Plaintiff's frivolous motion for a preliminary injunction because she failed to demonstrate
irreparable harm, which was Plaintiff's burden. In any event, as is set forth herein, there are no
actionable statements in the Nardone Aff.
In addition, all of the above claims should be dismissed because they are barred by the
business judgment rule, which does not permit the Court to review the reasonableness of the
Board’s conduct here. Plaintiff's conclusory allegations do not overcome the presumption of
regularity created by the business judgment rule.
Finally, Plaintiff's Eighth Cause of Action for property damage in the amount of
$1,740.91, to the extent it may survive this motion to dismiss, should be transferred to the Civil
Court for adjudication there.
STATEMENT OF FACTS
The Co-op owns the Building. (Compl. §7). On or about December 15, 1989, Plaintiff
and Mr. Siller, then co-lessees of Unit 12T, contracted to lease Unit 12R with the intention of
combining the two units. (See Compl. {§1, 10). On June 25, 1990, the Sillers entered into an
alteration agreement with the Co-op (“1990 Alteration Agreement”) and thereafter the proposed
alterations were approved. (Compl. §1, 10). As part of the renovations, Plaintiff installed a
clothes washer, gas dryer and dryer vent. (Compl. 411).
On or about April 18, 2001, Plaintiff and the Co-op entered into the Lease, which
supersedes any prior leases. (Compl. § 18). In January 2014, Plaintiff's washing machine broke.
(Compl. §15). However, according to the Complaint, Plaintiff needs to replace both her washer
and gas dryer because the gas dryer is stacked with the washer and “connected via a single
control panel.” (Compl. qs). Plaintiff and her husband allegedly advised the Co-op’s
managing agent of this situation. (Compl. 16). The Co-op, however, would only permit
Plaintiff to replace her existing washer and dryer with certain specified machines, which Plaintiff
alleges are “incompatible with the design” of her laundry room. (Compl. 16). Among the
reasons for its position were certain 2010 amendments to the Co-op’s house rules (which were
carried forward when these rules were later amended in 2012) limiting the installation or
replacement of washers and dryers in shareholder units to brands researched and selected by the
Board based on various product features, including the fact that the dryers were self-venting.
(See Nardone Aff. attached as Exhibit G to Margolis Aff).
ARGUMENT
“The applicable standard for determining a CPLR 3211(a)(7) motion is whether, within
the four corners of the complaint, any cognizable cause of action has been stated.” Scott v. Bell
Atlantic Corp., 282 A.D.2d 180, 183, 726 N.Y.S.2d 60, 63 (1% Dep’t 2001), citing
Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 185 (1977). “It is well
settled that bare legal conclusions and factual claims, which are either inherently incredible or
flatly contradicted by documentary evidence...are not presumed to be true on a motion to
dismiss for legal insufficiency.” O’Donnell, Fox & Gartner, P.C. v. R-2000 Corp., 198 A.D.2d
154, 154, 604 N.Y.S.2d 67, 68 (1* Dept. 1993).
Under CPLR 3211(a)(1), “A party may move for judgment dismissing one or more
causes of action asserted against him on the ground that: (1) a defense is founded upon
documentary evidence .. . * N.Y.C.P.L.R. 3211(a)(1)(McKinney 2009). “The court . . . is not
“In prior interations of the Complaint, Plaintiff alleged that parts are no longer available for the washer. In the
Second Amended Complaint, Plaintiff alleges that repairs are “impractical.” (Compl. § 15).
* As Plaintiff repeatedly references them in the Complaint, the Nardone Aff., and the documents that are exhibits
thereto, may be considered in connection with Defendants’ motion to dismiss. (see Compl. §{ 26-29, 52, 73).
7
required to accept factual allegations, or accord favorable inferences, where the factual assertions
are plainly contradicted by documentary evidence.” Bishop v. Maurer, 33 A.D.3d 497, 498, 823
N.Y.S.2d 366, 367 (1st Dep’t 2006). “[A]llegations consisting of bare legal conclusions, as well
as factual claims either inherently incredible or flatly contradicted by documentary evidence, are
not presumed to be true and accorded every favorable inference.” Biondi v. Beekman Hill House
Apartment Corp., 257 A.D.2d 76, 81, 692 N.Y.S.2d 304, 308 (1st Dep’t 1999) (internal citations
omitted).
“[I]t is undisputed that the Court, on a CPLR 3211(a)(1) or (7) dismissal motion, may
consider documents referred to in a Complaint. . . even if the pleading fails to attach them.
Deer Consumer Products Inc. v. Little, No. 650823/2011, 2011 WL 4346674 at *4 (Sup. Ct.
N.Y. County, Aug. 31, 2011); see Alliance Network, LLC v. Sidley Austin LLP, No.
653731/2012, 2014 WL 1258222 at n.1 (Sup. Ct., N.Y. County March 20, 2014). “Where a
variance exists between the written contract and the conclusion drawn by the pleader, the writing
must prevail over the allegations of the complaint.” La Potin v. Julius Lang Co., 30 A.D.2d 527,
528, 290 N.Y.S.2d 619, 620 (1* Dep’t 1968).
I THE COMPLAINT SHOULD BE DISMISSED AS TO THE INDIVIDUAL
DEFENDANTS
Although each of the eight causes of action in the Complaint is labeled only as against the
Co-op, Nardone, or both of them, Plaintiff nevertheless lists the Individual Defendants in the
caption and refers to them as “Defendants.” (Compl § 9). Plaintiff concedes that the Individual
Defendants were solely “named as defendants to derivative claims pled in the First Amended
Complaint” and that “[t]his Second Amended Complaint no longer includes those derivative
claims.” (Compl. 49). Yet, apparently for no reason other than pure harassment, Plaintiff
continues to attempt to burden the Individual Defendants with this action. Plaintiff does not
and cannot allege any causes of action against the Individual Defendants. Moreover, it is
8
undisputed that none of them, individually, had any contract with Plaintiff whatsoever. See Balk
y. 125 W. 92" St. Corp., 24 A.D.3d 193, 194, 806 N.Y.S.2d 31, 32 (1 Dep’t 2005)(“Since the
individual defendants are not signatories to the proprietary lease . . . no breach of contract can be
asserted against them.”). “Where a variance exists between the written contract and the
conclusion drawn by the pleader, the writing must prevail over the allegations of the complaint.”
La Potin y. Julius Lang Co., 30 A.D.2d at 528, 290 N.Y.S.2d at 620. Likewise, Plaintiff does not
and cannot allege any wrongdoing by the Individual Defendants separate and apart from their
collective actions taken on behalf of the Co-op. See 20 Pine Street Homeowners Assoc. v. 20
Pine Street LLC, 109 A.D.3d 733, 734-35, 971 N.Y.S.2d 289, 291-92 (1st Dept. 2013).
Accordingly, the Complaint should be dismissed as against the Individual Defendants.
IL. PLAINTIFF’S FIRST CLAIM FOR DECLARATORY AND INJUNCTIVE
RELIEF FAILS TO STATE A CAUSE OF ACTION
“Where there is no necessity for resorting to the declaratory judgment it should not be
employed.” Anonymous v. Axelrod, 92 A.D.2d 789, 459 N.Y.S.2d 778, 779 (1% Dep’t 1983)
quoting James v. Alderton Dock Yards, 256 N.Y. 298, 305 (1931). Thus, where an adequate
remedy exists or is alleged in a complaint under a breach of contract or other theory, a cause of
action for a declaratory judgment is improper and should be dismissed. Sullo v. Margab Realty,
LLC, No. 109246/07, 2008 WL 2699542 at * 4 (Sup. Ct, N.Y. County June 11, 2008)
(dismissing cause of action for declaratory judgment “because it parallels the other claims and
merely seeks a declaration of the same rights and obligations.”); Barker v. Time Warner Cable,
Inc., No. 016438/08, 2009 WL 1957740 at *9 (Sup. Ct., Nassau County July 1, 2009)(“a party
may not seek a declaratory judgment when the party has other available remedies, such as an
action for breach of contract.”).
Here, although Plaintiff's First Cause of Action is labeled “Declaratory and Injunctive
Relief,” it fails to identify exactly what Plaintiff is asking the Court to declare or enjoin.
9
Although Plaintiff generally alleges that “Helen is entitled to replace [her washer/dryer],” the
Complaint does not set forth the language, scope or content of any proposed declaration or
injunction. (Compl. {§ 30-35). As Plaintiff's request for declaratory relief merely recasts her
breach of contract and tort claims in the form of a request for a declaratory judgment, it is
improper and should be dismissed. See Anonymous, 92 A.D.2d at 789, 459 N.Y.S.2d at 779;
Sullo, 2008 WL 2699542 at * 4; Barker, 2009 WL 1957740 at *9.
Moreover, to the extent Plaintiff's First Cause of Action may be construed as seeking an
injunction, it should be dismissed because the Complaint fails to state any substantive cause of
action against Defendants. “{I]njunctive relief is simply not available when the plaintiff does not
have any remaining substantive cause of action,” since “permanent injunctive relief is, at its core,
a remedy that is dependent on the merits of the substantive claims asserted.” Alliance Network,
LLC y. Sidley Austin LLP, No. 653731/2012, 2014 WL 1258222 at *11 (Sup. Ct., N.Y. County
March 20, 2014). As is set forth herein, all other claims in the Complaint fail as a matter of law.
Accordingly, Plaintiffs First Cause of Action for an injunction should be dismissed because
there are no viable claims alleged in the Complaint to remedy with an injunction.
Furthermore, “[a] permanent injunction is a drastic remedy which may be granted only
where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction.”
Peyton v. PWV Acquisition LLC, No. 111379/11 2013 WL 2165330 at *2 (Sup. Ct. N.Y. County
May 20, 2013). A plaintiff must establish “not only irreparable harm, but also the absence of an
adequate legal remedy” /d. Here, as the Court correctly held when denying Plaintiffs motion for
a preliminary injunction, Plaintiffs allegations do not demonstrate irreparable harm. (See
Margolis Aff. Ex. H). Plaintiff will not be irreparably harmed by using the Building Laundry
Room or following proper procedure in the Co-op to obtain approval for installation of one of the
10
washer and dryer models approved by the Board. Accordingly, Plaintiff's First Cause of Action
for declaratory and injunctive relief should be dismissed.
Til. PLAINTIFF’S SECOND CLAIM FOR DECLARATORY AND INJUNCTIVE
RELIEF FAILS TO STATE A CAUSE OF ACTION
Plaintiff's Second Cause of Action seeks a declaration “under RPAPL 1515 or otherwise”
that: “(a) no new alteration agreement and no further approval from the Brevoort is required for
Helen to replace her laundry machines with new Energy Star appliances and utilizing the existing
hook ups and dryer vent (b) house rules 4, 77 and 100, and the corresponding provisions in the
new alteration agreement (including paragraph 10(h)(3) thereof), are null and void to the extent
they (i) should have been but were not filed with the Attorney General for his approval as an
amendment to the Brevoort’s Offering Plan, (ii) are being applied to Helen regarding the washer
and dryer, (iii) are inconsistent and conflict with paragraphs 6, 16, 19 and 20 of the proprietary
lease, (iv) are not ‘reasonable,’ and (v) are not and have not been found by the Brevoort’s board
of directors to be ‘necessary for the operation and control of the building’; and (c) the Brevoort
and every person claiming under or in the right of the Brevoort be barred from any and all claims
to an estate or interest in the existing dryer vent because Helen has adverse possession thereof or
an easement therefor.” (Compl. 946).
Plaintiff's RPAPL §1515 claim should be dismissed because the Complaint does not
allege the requisite claim to property required by the statute. It is undisputed that the Co-op “has
owned the subject real estate in fee simple” and Plaintiff is a tenant-shareholder. (Compl. § 38).
“Essential to the maintenance of an action to determine a claim to real property is that the
complaint state a claim by the defendant, of ‘an estate or interest in the real property, adverse to
that of the plaintiff (RPAPL 1515[1][b] emphasis added). Where, as here, the parties recognize
that the basis of the tenant’s claim is an interest pursuant to a lease, no claim adverse to the
landlord’s interest in the property is asserted, and the complaint fails to state a cause of action.”
ll
East 41" Street Assocs. vy. 18 East 42" Street, L.P., 248 A.D.2d 112, 114, 669 N.Y.S.2d 546, 548
(1* Dep’t 1998); see 87 Bowery Realty Corp. v. Qui Hui Chen, No. 106565/05, 2008 WL
2447335 at *4 (Sup. Ct., N.Y. County, June 18, 2008)(“the basis of the tenant[s’] claim is an
interest pursuant to a lease, no claim adverse to the landlord’s interest in the property is asserted,
and the complaint fails to state a cause of action.”) (internal quotation marks omitted).
Moreover, as Plaintiff's request for declaratory relief merely recasts her breach of contract and
tort claims in the form of a request for a declaratory judgment, it is improper and should be
dismissed. See Anonymous, 92 A.D.2d at 789, 459 N.Y.S.2d at 779; Sullo, 2008 WL 2699542 at
* 4: Barker, 2009 WL 1957740 at *9.
Plaintiff has no unfettered “property” right to install any replacement machines of her
choice in perpetuity, in any manner she sees fit and in contravention of all of the governing
corporate documents she agreed to. As the court held in Cannon Point North, Inc. v. Abeles, 160
Misc. 2d 30, 32, 612 N.Y.S.2d 289, 290 (App. Term., 1" Dep’t, 1993):
The fact that respondents were permitted to maintain their appliances with the
apparent knowledge of various building employees did not preclude petitioner’s
board of directors from establishing and enforcing a specific house rule addressed
to this subject. Pursuant to the proprietary leases, the board at any time could
‘alter amend and repeal’ the house rules, and it cannot be reasonably argued that
respondents had somehow acquired vested rights in the continued maintenance of
these machines. Having chosen the cooperative form of ownership, [respondents
are] bound to abide by the rules and regulations governing its operation.
Plaintiff's Second Cause of Action also seeks an injunction “barring defendants, and
every person claiming under any of them, from interfering with her interest in the apartment,
including but not limited to, her continued use of the existing dryer vent and replacement of the
laundry machines. (Compl. §42(b)). Since the Complaint fails to state any substantive cause of
action against defendants, Plaintiff's claim for injunctive relief must be dismissed. See Alliance
Network, 2014 WL 1258222 at *11. As is set forth herein, all other claims in the Complaint fail
as a matter of law. Accordingly, Plaintiff's Second Cause of Action for an injunction under
12
RPAPL §1515 or otherwise should be dismissed because there are no viable claims alleged in the
Complaint to remedy with an injunction.
Furthermore, as the Court has already held, Plaintiff's allegations do not demonstrate the
requisite irreparable harm for the issuance of an injunction. (Margolis Aff. Ex. H); see Peyton,
2013 WL 2165330 at *2. Plaintiff will not be irreparably harmed by using the Building Laundry
Room or following proper procedure in the Co-op to obtain approval for installation of one of the
washer and dryer models approved by the Board. Accordingly, Plaintiff's Second Cause of
Action for declaratory and injunctive should be dismissed.
Iv. PLAINTIFF’S THIRD CLAIM FOR PRIMA FACIE TORT AGAINST
NARDONE SHOULD BE DISMISSED
Plaintiff's Third Cause of Action for prima facie tort against Nardone is based upon
Nardone (i) allegedly “compelling” Plaintiff to perform alterations and repairs in her apartment
and (ii) allegedly filing a “false and misleading” affidavit in opposition to Plaintiff's
unsuccessful motion for a preliminary injunction. (Compl. {§ 49-52). A claim for prima facie
tort requires intentional infliction of harm, causing special damages, without excuse or
justification, by an act or series of acts that would otherwise be lawful. Curiano v. Suozzi, 63
N.Y.2d 113, 117 (1984). The allegations in the complaint must also demonstrate that the sole
motivation for the tortious conduct was “disinterested malevolence.” Jd. Special damages must
be pled with particularity. See Havell v. Islam, 292 A.D.2d 210, 739 N.Y.S.2d 371, 372 (1"
Dep’t 2002). Such damages must be alleged “with sufficient particularity to identify actual
losses and be related causally to the alleged tortious acts.” Ginsberg v. Ginsberg, 84 A.D.2d
573, 574, 443 N.Y.S.2d 439, 441 (2d Dep’t 1981). Damages that are “conjectural in identity or
speculative in amount” are insufficient to support a cause of action for prima facie tort. Vigoda
v. DCA Prod. Plus, Inc., 293 A.D.2d 265, 266, 741 N.Y.S.2d 20, 23 (1 Dep’t 2002). “What is,
in effect, a restatement of the complaint's breach of contract and intentional tort claims cannot be
13
made to stand independently as a prima facie tort... . Prima facie tort should not become a
‘catch-all’ alternative for every cause of action which cannot stand on its legs.” Gertler v.
Goodgold, 107 A.D.2d 481, 490, 487 N.Y.S.2d 565, 572 (1 Dep’t 1985)(internal quotation
marks omitted).
Here, Plaintiff's Third Cause of Action for prima facie tort is, in effect, merely a
restatement of her breach of contract and other tort claims and should be dismissed. Plaintiff
simply alleges that Nardone “compelled” Plaintiff to perform “unnecessary” alterations and
repairs” in her apartment and that such conduct “constitutes a prima facie tort.” (Compl. fff 49-
50, 53). Thus, Plaintiff, improperly attempts to use this claim as a catch-all alternative for her
other unsustainable causes of action. The prima facie tort claim should be dismissed on this
ground alone. See Gertler, 107 A.D.2d at 490, 487 N.Y.S.2d at 572. Moreover, Nardone has not
“compelled” Plaintiff to alter her laundry room in any way. If Plaintiff does not want to follow
Co-op House Rules and procedures for the installation of a new washer and dryer in her Unit, she
remains free to use the Basement Laundry Room.
Plaintiff also fails to allege special damages because no “actual losses” are alleged with
specificity that are causally attributable to any alleged tortious conduct by Nardone. Plaintiff
speculates that she “will be compelled to pay for unnecessary work to her apartment and,
ultimately, to prosecute this action,” but fails to allege “actual” damage incurred. Plaintiff
merely complains about inconvenience. Indeed, as Plaintiffs counsel explained at oral argument
on Defendants motion to dismiss the First Amended Complaint: “if we can get the washing
machine replaced it will be a lot easier for Mrs. Siller so she doesn’t have to carry laundry up and
° Plaintiff's newly minted allegations of “damage” are frivolous. On page 9 of her memorandum of law in
opposition to defendants’ motion to dismiss the First Amended Complaint, Plaintiff argued that her monetary
damages were “based on the cost of sending the laundry out for cleaning.” Yet, on the very next page, Plaintiff
claimed “to have to endure” using and paying the cost of using the laundry machines in the Building Laundry Room.
Plaintiff has apparently abandoned those allegations in favor of her latest theory.
14
down [in an elevator] to the basement. And that’s what this is about.” (Margolis Aff. Ex. H).
Plaintiff also alleges that Nardone’s alleged failure to withdraw her affidavit submitted in
opposition to Plaintiffs motion for a preliminary injunction has caused “damage” to Plaintiff.
(Compl. {§52-54). However, Plaintiff — not Nardone — filed the motion for a preliminary
injunction and the Court denied the motion based upon Plaintiff's utter failure to meet her burden
to establish irreparable harm, not the contents of Nardone’s opposition.
In addition, Plaintiff cannot allege that Nardone was solely motivated by disinterested
malevolence. The 2010 and 2012 House Rules were adopted long before Plaintiff's washing
machine broke in 2014. Accordingly, Plaintiff's Third Cause of Action for prima facie tort
should be dismissed.
Vv. PLAINTIFF’S FOURTH CAUSE OF ACTION FOR TORTIOUS
INTERFERENCE WITH CONTRACT SHOULD BE DISMISSED
The elements of a claim for tortious interference with contract are “the existence of a
valid contract between the plaintiff and a third party, defendant’s knowledge of that contract,
defendant’s intentional procurement of the third-party’s breach of the contract without
justification, actual breach of the contract, and damages resulting therefrom.” Lama Holding v.
Smith Barney Inc. 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 82 (1996). “In order for the plaintiff to
have a cause of action for tortious interference with contract, it is axiomatic that there must be a
breach of that contract by the other party. Jack L. Inselman & Co., Inc. v. FNB Financial Co., 41
N.Y.2d 1078, 1080, 396 N.Y.S.2d 347, 349 (1977) citing Israel v. Wood Dolson Co., 1 N.Y.2d
116, 120, 151 N.Y.S.2d 1, 5 (1956). “Ever since tortious interference with contractual relations
made its first cautious appearance in the New York Reports...our Court has repeatedly linked the
availability of the remedy with a breach of contract.” NBT Bancorp Inc. v. Fleet/Norstar
Financial Group, Inc., 87 N.Y.2d 614, 620, 641 N.Y.S.2d 581, 584 (1996). See e.g, 2626 Bway
LLC v. Broadway Metro Assocs., LP, No. 105586/2010, 2011 WL 3631959 at *6 (Sup. Ct. N.Y.
County, August 11, 2011)(dismissing tortious interference with contract claim where sublessor
1S
alleged it was “prevented from subleasing” by its landlord, but “never allege[d] that [sublessee]
breached the sublease.”); Israel, 1 N.Y.2d at 120, 151 N.Y.S.2d at 5 (1956) (affirming summary
judgment dismissing tortious interference claim because “[a]n essential element of the case
against [defendant] is the breach of the contract...[and the] cause of action must fail if there was
no such breach.”); Lama Holding, 88 N.Y.2d at 424, 646 N.Y.S.2d at 82 (affirming dismissal of
tortious interference claim where there was “no allegation that [defendant] intentionally procured
{a third party’s] breach of its contract with [plaintiff] nor that [the third party] in fact breached its
contract’).
Where a contract is expressly contingent upon rights of a third party, the third party’s
exercise of those rights cannot form the basis of a claim for tortious interference with contract.
Levine v. Yorkell, 245 A.D.2d 138, 139, 665 N.Y.S.2d 962, 962 (1" Dep’t 1997)(dismissing
prospective purchaser’s action for tortious interference with contract against cooperative
apartment corporation because defendant’s refusal to approve purchase application was “,
a
contingency specifically contemplated in the contract of sale”); 2626 Bway, 2011 WL 3631959
at *7 (dismissing sublessor’s action against landlord for tortious interference with contract for
refusing to consent to sublessee where “the sublease specifically contemplates such a refusal”);
Tri- County Motors, Inc. v. American Suzuki Motor Corp., 494 F.Supp.2d 161, 175 (E.D.NY.
2007) (granting summary judgment to defendant and holding “[defendant] can incur no liability
for tortious interference by simply exercising its right to not approve the sale transaction.”).
Furthermore, “no cause of action for tortious inducement to breach a contract arises until
actual damages are sustained.” 24/7 Records, Inc. vy. Sony Music Entertainment, Inc., 566
F.Supp.2d 305, 320 (S.D.N.Y. 2008). Where a plaintiff cannot prove compensatory damages as
a result of a breach of contract by the party it contracted with, a claim against a third party for
tortious interference with contract fails as a matter of law. Id.
Here, as set forth as set forth infra Point VII, Plaintiff does not state a cause of action for
breach of contract against the Co-op. A fortiori, there can be no tortious interference with
contract claim against Nardone. Plaintiff*s tortious interference with contract claim (like her
16
prima facie tort claim) also fails because the 2010 and 2012 House Rules were adopted long
before Plaintiff's washing machine broke in 2014. Furthermore, amendments to the House Rules
and non-approval of a replacement washing machine were contingencies expressly contemplated
by the parties. The By-laws provide: “The board of directors shall have power to make and
change the house ru
Preview
INDEX NO. 151313/2014 FILED: NEW YORK COUNTY CLERK 11/26/2014 04:16 PM NYSCEF DOC.- NO. 100 RECEIVED NYSCEF 11/26/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ween cnn een eee enn ne nenennn mene nnn ennen meme HELEN SILLER, E-filed Plaintiff, Motion Sequence 004 - against - Index No. 151313/2014 THE THIRD BREVOORT CORPORATION, Oral Argument Requested DIANE C. NARDONE, CLIFF RUSSO, ELIZABETH LOUIE, ANDREW BAUM, GEORGE ALOI, CHRISTINE BECK, BONNIE HILLER, MORTIMOR C. LAZARUS, JANE WARREN, JOHN C.WOELL, AND BARBARA EISENBERG, Defendants. wane en nent e ene ne nnn n enn ennenennenen ne DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS THE SECOND AMENDED VERIFIED COMPLAINT ABRAMS GARFINKEL MARGOLIS BERGSON, LLP 1430 Broadway, 17th Floor New York, New York 10018 (212) 201-1170 Attorneys for Defendants Table of Contents PRELIMINARY STATEMENT A. Background B Summary of Argument STATEMENT OF FACTS ARGUMENT. I THE COMPLAINT SHOULD BE DISMISSED AS TO THE INDIVIDUAL DEFENDANTS IL PLAINTIFF'S FIRST CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF FAILS TO STATE A CAUSE OF ACTION IIL. PLAINTIFF'S SECOND CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF FAILS TO STATE A CAUSE OF ACTION 11 IV. PLAINTIFF'S THIRD CLAIM FOR PRIMA FACIE TORT AGAINST NARDONE SHOULD BE DISMISSED 13 PLAINTIFF'S FOURTH CAUSE OF ACTION FOR TORTIOUS INTERFERENCE WITH CONTRACT SHOULD BE DISMISSED 15 Vi PLAINTIFF'S FIFTH CLAIM FOR ATTORNEYS' FEES AND EXPENSES SHOULD BE DISMISSED 17 VIL PLAINTIFF'S SIXTH CLAIM FOR BREACH OF CONTRACT FAILS TO STATE A CAUSE OF ACTION AND SHOULD BE DISMISSED 17 A The Governing Documents 18 1 The Offering Plan 18 2 The By-Laws 18 The 1985 House Rules teseees 18 The 1990 Alteration Agreement 19 The Lease ... 20 The January 26, 2010 and March 1, 2012 Amended House Rules 21 The House Rules Concerning Washing Machines and Dryers Comply with the Offering Plan, By-Laws, Lease, and Alteration Agreement and Plaintiff Has Failed to Establish Any Breach Thereof by the Co-op 21 Plaintiff's Claims are Barred By The Release 23 Plaintiff Failed to Give The Required 30-Day Notice Prior to Filing This Action .. 24 Vill. PLAINTIFF'S SEVENTH CLAIM FOR DAMAGES UNDER JUDICIARY LAW §487 FAILS TO STATE A CLAIM. 24 IX. THE COMPLAINT IS BARRED BY THE BUSINESS JUDGMENT RULE 26 PLAINTIFF'S EIGHTH CLAIM FOR PROPERTY DAMAGE SHOULD BE DISMISSED. 27 CONCLUSION 28 i Table of Authorities Cases Page(s) 20 Pine Street Homeowners Assoc. v. 20 Pine Street LLC, 109 A.D.3d 733, 971 N.Y.S.2d 289 (1st Dept. 2013) ceseeeeeneeeerseersceaenseeseeseesserseeneeeeenseeee 81 Bowery Realty Corp. v. Qui Hui Chen, No. 106565/05, 2008 WL 2447335 (Sup. Ct., N.Y. County, June 18, 2008) tees 12 2626 Bway LLC y. Broadway Metro Assocs., LP, No. 105586/2010, 2011 WL 3631959 (Sup. Ct. N.Y. County, August 11, 2011) ..15, 16 24/7 Records, Inc. v. Sony Music Entertainment, Inc., 566 F.Supp.2d 305 (S.D.N.Y. 2008) deteetaetaeeeeeeeeeeeeseeeeeeeee steeeeeeeeestensenessneeseeatene 16 Allen v. Murray House Owners Corp., 174 A.D.2d 400, 571 N.Y.S.2d 698 (1* Dep’t 1991) ceseeeeeeneceeeeeeeeesaeeaeenegeseeaeensesseeneen 26 Alliance Network, LLC v. Sidley Austin LLP, No. 653731/2012, 2014 WL 1258222 (Sup. Ct., N.Y. County March 20, 2014) ....c.cceecseessesessesseesseessesstssnessessesssesseesesePQSSHM Anonymous v. Axelrod, 92 A.D.2d 789, 459 N.Y.S.2d 778 (1% Dep’t 1983) teseeeeeeeseecsesseeeterseseeaeteates 9, 10, 12 Balk v. 125 W. 92" St. Corp., 24 A.D.3d 193, 806 N.Y.S.2d 31 (1st Dep’t 2005) ceeeaeeeeeeeteceteeenesaesaeeaeeacesesseeeserseeeeraee Barbour v. Knecht, 296 A.D.2d 218, 743 N.Y.S.2d 483 (1* Dep’t 2002) ceeneeaeeaeteeeeeaeeeseeeesecaeesseeeeeesesseeaee 27 Barker y. Time Warner Cable, Inc., No. 016438/08, 2009 WL 1957740 (Sup. Ct., Nassau County July 1, 2009). 9, 10, 12 Biondi v. Beekman Hill House Apartment Corp.. 257 A.D.2d 76, 692 N.Y.S.2d 304 (Ist Dep’t 1999) . Bishop v. Maurer, 33 A.D.3d 497, 823 N.Y.S.2d 366 (1st Dep’t 2006) see ceesenseeseesseeaeesatesersneeeeenens Cannings v. East Midtown Plaza Housing Co., Inc., No. 401071/10, 2011 WL 5142033 (Sup. Ct., N.Y. County, Oct. 18, 2011) 26 Cannon Point North, Inc. v. Abeles, 160 Misc. 2d 30, 612 N.Y.S.2d 289 (App. Term., 1 Dep’t, 1993) seeteeeeeeeeaseeeeesees 12,27 2 iti Curiano v, Suozzi, 63 N.Y.2d 113 (1984) 13 Deer Consumer Products Inc. v. Little, No. 650823/2011, 2011 WL 4346674 (Sup. Ct. N.Y. County, Aug. 31, 2011) . . East 41" Street Assocs. V. 18 East 42"™ Street, L.P., 248 A.D.2d 112, 669 N.Y.S.2d 546 (1% Dep’t 1998) 11, 12 Gertler v. Goodgold, 107 A.D.2d 481, 487 N.Y.8.2d 565 (1 Dep’t 1985) 13, 14 Ginsberg v. Ginsberg, 84 A.D.2d 573, 443 N.Y.S.2d 439 (2d Dep’t 1981) 13 Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 401 N.Y.S.2d 182 (1977) Havell v. Islam, 292 A.D.2d 210, 739 N.Y.S.2d 371 (1 Dep’t 2002) 13 Israel vy. Wood Dolson Co., 1N.Y.2d 116, 151 N.Y.S.2d 1 (1956)... eee 15, 16 Jack L. Inselman & Co., Inc. v. FNB Financial Co., 41 N.Y.2d 1078, 396 N.Y.S.2d 347 (1977) 15 Lama Holding v. Smith Barney Inc., 88 N.Y.2d 413, 646 N.Y.S.2d 76 (1996) 15, 16 La Potin v. Julius Lang Co., 30 A.D.2d 527, 290 N.Y.S.2d 619 (1" Dep’t 1968) 8,9 Levandusky v. One Fifth Avenue Apt. Corp., 75 N.Y.2d 530, 553 N.E.2d 1317, 554 N.Y.S.2d 807 (1990), 26 Levine v. Yorkell, 245 A.D.2d 138, 665 N.Y.S.2d 962 (1st Dep’t 1997) 16 Maksimiak v. Schwartzapfel Novick Truhowsky Marcus, P.C., 82 A.D.3d 652, 919 N.Y.S.2d 330 (1st Dep’t 2011) 24 NBT Bancorp Inc. v. Fleet/Norstar Financial Group, Inc., 87 N.Y.2d 614, 641 N.Y.S.2d 581 (1996) 15 Iv O'Donnell, Fox & Gartner, P.C. v. R-2000 Corp., 198 A.D.2d 154, 604 N.Y.S.2d 67 (1 Dept. 1993) Peyton v. PWV Acquisition LLC, No. 111379/11 2013, WL 2165330 (Sup. Ct. N.Y. County May 20, 2013). 10, 13 Scott v. Bell Atl. Corp., 282 A.D.2d 180, 726 N.Y.S.2d 60 (Ist Dep’t 2001).. Sullo v. Margab Realty, LLC, No. 109246/07, 2008 WL 2699542 (Sup. Ct., N.Y. County June 11, 2008).......9, 10, 12 Tri- County Motors, Inc. v. American Suzuki Motor Corp., 494 F.Supp.2d 161 (E.D.N.Y. 2007) 16 Vigoda v. DCA Prod. Plus, Inc., 293 A.D.2d 265, 741 N.Y.S.2d 20 (1" Dep’t 2002) 13 PRELIMINARY STATEMENT Defendants The Third Brevoort Corporation (the “Co-op”), Diane C. Nardone (“Nardone”), Cliff Russo, Elizabeth Louie, Andrew Baum, George Aloi, Christine Beck, Bonnie Hiller, Mortimor C. Lazarus, Jane Warren, John C. Woell and Barbara Eisenberg (collectively, the “Individual Defendants”, and together with the Co-op and Nardone, the “Defendants”) respectfully submit this memorandum of law in support of their motion, pursuant to C.P.L.R. § 3211(a)(1) and 3211(a)(7), to dismiss plaintiff Helen Siller’s (“Plaintiff’) Second Amended Verified Complaint (“Complaint”) in this action, dated October 21, 2014. (Margolis Aff. Ex. A). In an action that has become a bitter, retaliatory and vindictive quest by the Sillers to malign Nardone for their laundry room inconvenience, Plaintiff has filed her latest iteration of the Complaint making colorful but wildly speculative and absurd allegations that Nardone personally denied Plaintiffs request to install the new washer/dryer she prefers for her apartment because Nardone will somehow receive a “benefit” from a building engineer. (Compl §{4-5). These irresponsible allegations do not state a viable cause of action against Nardone under any legal theory. Plaintiff's Complaint, like the prior versions, should be dismissed in all respects as against all Defendants because it asserts substantially the same ‘facts’ and legally deficient causes of action. Background On February 14, 2014, Plaintiff filed the original complaint (“Original Complaint”) in this action against the Co-op, seeking various forms of declaratory and injunctive relief and damages concerning the Co-op’s alleged breach of two proprietary leases (together, the “Lease”) ' Citations to “Margolis Aff.” refer to the Affirmation of Barry G. Margolis, dated November 26, 2014 submitted herewith. Citations to “Compl.” refer to Exhibit A to the Margolis Aff. The factual allegations in the Complaint are accepted as true for the purpose of this motion to dismiss only, except where flatly contradicted by documentary evidence. for combined apartments 12R and 12T (together, the “Unit”) in the building owned by the Co-op located at 9-21 Fifth Avenue, New York, New York and known as The Brevoort (“Building”). Plaintiff's husband-counsel, Stephen I. Siller, Esq. (“Mr. Siller”) also resides in the Unit with Plaintiff. The gravamen of the Original Complaint was that the Co-op allegedly breached the Lease and other documents by refusing to allow Plaintiff to replace her broken clothes washer with a new washer and outdoor-venting gas dryer of her choice because, among other reasons, outdoor-venting gas dryers do not comply with house rules promulgated by the Co-op’s board of directors (the “Board”) in 2010, over four (4) years prior to Plaintiff's washer/dryer falling into disrepair. Mrs. Siller, individually, was the sole named plaintiff and the Co-op was the sole named defendant in the Original Complaint. In a misguided attempt by Plaintiff's overzealous and self-interested husband-counsel to strong-arm the Board and “throw the first punch” in this washer/dryer dispute, Plaintiff filed a frivolous motion by order to show cause seeking a temporary restraining order and preliminary injunction affirmatively ordering the Co-op to allow Plaintiff to replace her broken machine with a washer and outdoor-venting gas dryer of her choice, notwithstanding any noncompliance with Co-op house rules or procedures. By Order dated March 17, 2014, the Court properly denied Plaintiff's request for a temporary restraining order and her request for a preliminary injunction, holding that Plaintiff failed to meet her burden of establishing irreparable harm. (NYSCEF Doc. No. 31).2 There is a fully functional laundry room (the “Building Laundry Room”) in the basement of the Building for the common use of all residents. 2 Had Plaintiff moved forward with the steps necessary to obtain and install a Board-approved washer and dryer — rather than joining Mr. Siller in wasting judicial resources and attempting to intimidate the Board with a frivolous application for “emergency” relief, Plaintiff likely could have been using a brand new washing machine and dryer (albeit a self-venting one) in her Unit months ago. Frustrated with their failure to obtain a preliminary injunction, and in a transparent attempt to harass and intimidate Defendants, Plaintiff filed a First Amended Verified Complaint (“First Amended Complaint”) purporting to bring claims both individually and derivatively as a shareholder on behalf of the Co-op, against the Co-op and eleven (11) individual, present and former Board Members, notwithstanding the absence of any contractual relationship between Plaintiff and these individuals concerning her unit, her appliances or otherwise. The First Amended Complaint alleged fifteen (15) improperly intermingled direct and derivative claims for relief and sought, inter alia, $2 million in “damages.” On May 12, 2014, before the mutually agreed upon deadline for Defendants to respond to the First Amended Complaint, Plaintiff filed a frivolous and procedurally defective pre-joinder motion for partial summary judgment on her then-inoperative Original Complaint. This ruse, designed to distract the Court from the threshold legal deficiencies in Plaintiff's First Amended Complaint was not successful. By Decision and Order dated September 22, 2014, the Court denied Plaintiff's Motion for Partial Summary Judgment and granted Defendants’ Motion to Dismiss the First Amended Complaint, “dismissing [the] action without prejudice unless [Plaintiff] replead[s] it within 30 days.” (NYSCEF Doc No. 86). The October 21, 2014 Complaint was served/filed thereafter. Summary of Argument As a threshold matter, the Complaint should be dismissed in all respects as against the Individual Defendants. Although each of the eight causes of action in the Complaint is labeled as being asserted only against the Co-op, Nardone, or both of them, Plaintiff nevertheless lists the Individual Defendants in the caption and refers to them as “Defendants.” (Compl 4 9). Plaintiff concedes that the Individual Defendants were solely “named as defendants to derivative claims pled in the First Amended Complaint” and that “[t]his Second Amended Complaint no longer includes those derivative claims.” (Compl. 9). Yet, apparently for no reason other than pure harassment, Plaintiff continues to attempt to burden Nardone and the Individual Defendants with this action. Plaintiff does not and cannot allege any causes of action against the Individual Defendants. Accordingly, the Complaint should be dismissed as against the Individual Defendants. Plaintiff's First and Second Causes of Action for various declaratory judgments and injunctive relief should be dismissed because a party may not seek a declaratory judgment where it has other available remedies or it merely seeks a declaration of the same rights and obligations asserted in other causes of action. Moreover, to the extent Plaintiff purports to seek declaratory relief under RPAPL § 1515, her claims should be dismissed because the Complaint does not allege the requisite claim to property as it is undisputed that the Co-op is the fee simple owner of the Building. Plaintiff's demand for injunctive relief should be dismissed because injunctive relief is simply not available when the plaintiff does not have any remaining substantive cause of action. Furthermore, Plaintiff cannot allege the requisite irreparable harm and absence of a legal remedy, which are both necessary to state a cause of action for a permanent injunction. Plaintiff's Third Cause of Action for prima facie tort against Nardone should be dismissed because Plaintiff improperly attempts to use this claim as a catch-all alternative for her other unsustainable causes of action. Plaintiff also fails to allege special damages because no “actual losses” are alleged with specificity or otherwise that are causally attributable to any alleged tortious conduct by Nardone. In addition, Plaintiff cannot allege that Nardone was solely motivated by disinterested malevolence. Plaintiff's Fourth Cause of Action for Tortious Interference with Contract against Nardone should be dismissed because where there is no breach of contract, as is the case here, there can be no tortious interference with contract as a matter of law. Furthermore, the changes to the House Rules that Plaintiff alleges constituted a breach of contract were expressly contemplated by her Lease with the Co-op, and Plaintiff has failed to allege any actual damages sustained as a result of any conduct of Nardone. Indeed, the 2010 and 2012 House Rules Plaintiff complains of were adopted long before Plaintiff's washing machine broke in 2014. Plaintiff's Fifth Cause of Action for attorneys’ fees and expenses should be dismissed because the statutes relied upon by Plaintiff simply do not provide for an award of attorneys’ fees in the circumstances presented here. Plaintiff's Sixth Cause of Action for breach of contract should be dismissed because there was no breach by Defendants. As clearly demonstrated by the governing documents including the Co-op offering plan (“Plan”), by-laws (“By-Laws”), various house rules, Plaintiff's Lease and Plaintiff's 1990 alteration agreement with the Co-op, which are expressly referenced in the Second Amended Complaint and can be considered on this motion to dismiss despite Plaintiffs failure to attach them to the Second Amended Complaint, Plaintiff had no contractual grandfathering clause or property interest giving her the right to install any particular washing machine and dryer of her choosing a quarter-century after her now-defunct machine was allegedly first approved in 1990. To the contrary, the Plan and Bylaws state that any installation of a new washing machine or dryer would require the written consent of the Board and that the Board had the power to make or change house rules (which are incorporated into the Lease) at any time. Moreover, Plaintiff failed to comply with the contractually mandated notice requirements prior to filing this action which is, therefore a breach of the Lease. Plaintiff's Seventh Cause of Action for violation of Judiciary Law § 487 against Nardone should be dismissed because even assuming arguendo that the Nardone Aff? contained false statements, * Citations to “Nardone Afi refer to the previously filed Affirmation of Diane C. Nardone In Opposition to Order To Show Cause, dated February 17, 2014. (NYSCEF Doc. No. 9). The Nardone Aff. is resubmitted herewith as Exhibit G to the Margolis Aff. Plaintiff suffered no injury from any statement made in the Nardone Aff. The Court denied Plaintiff's frivolous motion for a preliminary injunction because she failed to demonstrate irreparable harm, which was Plaintiff's burden. In any event, as is set forth herein, there are no actionable statements in the Nardone Aff. In addition, all of the above claims should be dismissed because they are barred by the business judgment rule, which does not permit the Court to review the reasonableness of the Board’s conduct here. Plaintiff's conclusory allegations do not overcome the presumption of regularity created by the business judgment rule. Finally, Plaintiff's Eighth Cause of Action for property damage in the amount of $1,740.91, to the extent it may survive this motion to dismiss, should be transferred to the Civil Court for adjudication there. STATEMENT OF FACTS The Co-op owns the Building. (Compl. §7). On or about December 15, 1989, Plaintiff and Mr. Siller, then co-lessees of Unit 12T, contracted to lease Unit 12R with the intention of combining the two units. (See Compl. {§1, 10). On June 25, 1990, the Sillers entered into an alteration agreement with the Co-op (“1990 Alteration Agreement”) and thereafter the proposed alterations were approved. (Compl. §1, 10). As part of the renovations, Plaintiff installed a clothes washer, gas dryer and dryer vent. (Compl. 411). On or about April 18, 2001, Plaintiff and the Co-op entered into the Lease, which supersedes any prior leases. (Compl. § 18). In January 2014, Plaintiff's washing machine broke. (Compl. §15). However, according to the Complaint, Plaintiff needs to replace both her washer and gas dryer because the gas dryer is stacked with the washer and “connected via a single control panel.” (Compl. qs). Plaintiff and her husband allegedly advised the Co-op’s managing agent of this situation. (Compl. 16). The Co-op, however, would only permit Plaintiff to replace her existing washer and dryer with certain specified machines, which Plaintiff alleges are “incompatible with the design” of her laundry room. (Compl. 16). Among the reasons for its position were certain 2010 amendments to the Co-op’s house rules (which were carried forward when these rules were later amended in 2012) limiting the installation or replacement of washers and dryers in shareholder units to brands researched and selected by the Board based on various product features, including the fact that the dryers were self-venting. (See Nardone Aff. attached as Exhibit G to Margolis Aff). ARGUMENT “The applicable standard for determining a CPLR 3211(a)(7) motion is whether, within the four corners of the complaint, any cognizable cause of action has been stated.” Scott v. Bell Atlantic Corp., 282 A.D.2d 180, 183, 726 N.Y.S.2d 60, 63 (1% Dep’t 2001), citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 185 (1977). “It is well settled that bare legal conclusions and factual claims, which are either inherently incredible or flatly contradicted by documentary evidence...are not presumed to be true on a motion to dismiss for legal insufficiency.” O’Donnell, Fox & Gartner, P.C. v. R-2000 Corp., 198 A.D.2d 154, 154, 604 N.Y.S.2d 67, 68 (1* Dept. 1993). Under CPLR 3211(a)(1), “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: (1) a defense is founded upon documentary evidence .. . * N.Y.C.P.L.R. 3211(a)(1)(McKinney 2009). “The court . . . is not “In prior interations of the Complaint, Plaintiff alleged that parts are no longer available for the washer. In the Second Amended Complaint, Plaintiff alleges that repairs are “impractical.” (Compl. § 15). * As Plaintiff repeatedly references them in the Complaint, the Nardone Aff., and the documents that are exhibits thereto, may be considered in connection with Defendants’ motion to dismiss. (see Compl. §{ 26-29, 52, 73). 7 required to accept factual allegations, or accord favorable inferences, where the factual assertions are plainly contradicted by documentary evidence.” Bishop v. Maurer, 33 A.D.3d 497, 498, 823 N.Y.S.2d 366, 367 (1st Dep’t 2006). “[A]llegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, are not presumed to be true and accorded every favorable inference.” Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81, 692 N.Y.S.2d 304, 308 (1st Dep’t 1999) (internal citations omitted). “[I]t is undisputed that the Court, on a CPLR 3211(a)(1) or (7) dismissal motion, may consider documents referred to in a Complaint. . . even if the pleading fails to attach them. Deer Consumer Products Inc. v. Little, No. 650823/2011, 2011 WL 4346674 at *4 (Sup. Ct. N.Y. County, Aug. 31, 2011); see Alliance Network, LLC v. Sidley Austin LLP, No. 653731/2012, 2014 WL 1258222 at n.1 (Sup. Ct., N.Y. County March 20, 2014). “Where a variance exists between the written contract and the conclusion drawn by the pleader, the writing must prevail over the allegations of the complaint.” La Potin v. Julius Lang Co., 30 A.D.2d 527, 528, 290 N.Y.S.2d 619, 620 (1* Dep’t 1968). I THE COMPLAINT SHOULD BE DISMISSED AS TO THE INDIVIDUAL DEFENDANTS Although each of the eight causes of action in the Complaint is labeled only as against the Co-op, Nardone, or both of them, Plaintiff nevertheless lists the Individual Defendants in the caption and refers to them as “Defendants.” (Compl § 9). Plaintiff concedes that the Individual Defendants were solely “named as defendants to derivative claims pled in the First Amended Complaint” and that “[t]his Second Amended Complaint no longer includes those derivative claims.” (Compl. 49). Yet, apparently for no reason other than pure harassment, Plaintiff continues to attempt to burden the Individual Defendants with this action. Plaintiff does not and cannot allege any causes of action against the Individual Defendants. Moreover, it is 8 undisputed that none of them, individually, had any contract with Plaintiff whatsoever. See Balk y. 125 W. 92" St. Corp., 24 A.D.3d 193, 194, 806 N.Y.S.2d 31, 32 (1 Dep’t 2005)(“Since the individual defendants are not signatories to the proprietary lease . . . no breach of contract can be asserted against them.”). “Where a variance exists between the written contract and the conclusion drawn by the pleader, the writing must prevail over the allegations of the complaint.” La Potin y. Julius Lang Co., 30 A.D.2d at 528, 290 N.Y.S.2d at 620. Likewise, Plaintiff does not and cannot allege any wrongdoing by the Individual Defendants separate and apart from their collective actions taken on behalf of the Co-op. See 20 Pine Street Homeowners Assoc. v. 20 Pine Street LLC, 109 A.D.3d 733, 734-35, 971 N.Y.S.2d 289, 291-92 (1st Dept. 2013). Accordingly, the Complaint should be dismissed as against the Individual Defendants. IL. PLAINTIFF’S FIRST CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF FAILS TO STATE A CAUSE OF ACTION “Where there is no necessity for resorting to the declaratory judgment it should not be employed.” Anonymous v. Axelrod, 92 A.D.2d 789, 459 N.Y.S.2d 778, 779 (1% Dep’t 1983) quoting James v. Alderton Dock Yards, 256 N.Y. 298, 305 (1931). Thus, where an adequate remedy exists or is alleged in a complaint under a breach of contract or other theory, a cause of action for a declaratory judgment is improper and should be dismissed. Sullo v. Margab Realty, LLC, No. 109246/07, 2008 WL 2699542 at * 4 (Sup. Ct, N.Y. County June 11, 2008) (dismissing cause of action for declaratory judgment “because it parallels the other claims and merely seeks a declaration of the same rights and obligations.”); Barker v. Time Warner Cable, Inc., No. 016438/08, 2009 WL 1957740 at *9 (Sup. Ct., Nassau County July 1, 2009)(“a party may not seek a declaratory judgment when the party has other available remedies, such as an action for breach of contract.”). Here, although Plaintiff's First Cause of Action is labeled “Declaratory and Injunctive Relief,” it fails to identify exactly what Plaintiff is asking the Court to declare or enjoin. 9 Although Plaintiff generally alleges that “Helen is entitled to replace [her washer/dryer],” the Complaint does not set forth the language, scope or content of any proposed declaration or injunction. (Compl. {§ 30-35). As Plaintiff's request for declaratory relief merely recasts her breach of contract and tort claims in the form of a request for a declaratory judgment, it is improper and should be dismissed. See Anonymous, 92 A.D.2d at 789, 459 N.Y.S.2d at 779; Sullo, 2008 WL 2699542 at * 4; Barker, 2009 WL 1957740 at *9. Moreover, to the extent Plaintiff's First Cause of Action may be construed as seeking an injunction, it should be dismissed because the Complaint fails to state any substantive cause of action against Defendants. “{I]njunctive relief is simply not available when the plaintiff does not have any remaining substantive cause of action,” since “permanent injunctive relief is, at its core, a remedy that is dependent on the merits of the substantive claims asserted.” Alliance Network, LLC y. Sidley Austin LLP, No. 653731/2012, 2014 WL 1258222 at *11 (Sup. Ct., N.Y. County March 20, 2014). As is set forth herein, all other claims in the Complaint fail as a matter of law. Accordingly, Plaintiffs First Cause of Action for an injunction should be dismissed because there are no viable claims alleged in the Complaint to remedy with an injunction. Furthermore, “[a] permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction.” Peyton v. PWV Acquisition LLC, No. 111379/11 2013 WL 2165330 at *2 (Sup. Ct. N.Y. County May 20, 2013). A plaintiff must establish “not only irreparable harm, but also the absence of an adequate legal remedy” /d. Here, as the Court correctly held when denying Plaintiffs motion for a preliminary injunction, Plaintiffs allegations do not demonstrate irreparable harm. (See Margolis Aff. Ex. H). Plaintiff will not be irreparably harmed by using the Building Laundry Room or following proper procedure in the Co-op to obtain approval for installation of one of the 10 washer and dryer models approved by the Board. Accordingly, Plaintiff's First Cause of Action for declaratory and injunctive relief should be dismissed. Til. PLAINTIFF’S SECOND CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF FAILS TO STATE A CAUSE OF ACTION Plaintiff's Second Cause of Action seeks a declaration “under RPAPL 1515 or otherwise” that: “(a) no new alteration agreement and no further approval from the Brevoort is required for Helen to replace her laundry machines with new Energy Star appliances and utilizing the existing hook ups and dryer vent (b) house rules 4, 77 and 100, and the corresponding provisions in the new alteration agreement (including paragraph 10(h)(3) thereof), are null and void to the extent they (i) should have been but were not filed with the Attorney General for his approval as an amendment to the Brevoort’s Offering Plan, (ii) are being applied to Helen regarding the washer and dryer, (iii) are inconsistent and conflict with paragraphs 6, 16, 19 and 20 of the proprietary lease, (iv) are not ‘reasonable,’ and (v) are not and have not been found by the Brevoort’s board of directors to be ‘necessary for the operation and control of the building’; and (c) the Brevoort and every person claiming under or in the right of the Brevoort be barred from any and all claims to an estate or interest in the existing dryer vent because Helen has adverse possession thereof or an easement therefor.” (Compl. 946). Plaintiff's RPAPL §1515 claim should be dismissed because the Complaint does not allege the requisite claim to property required by the statute. It is undisputed that the Co-op “has owned the subject real estate in fee simple” and Plaintiff is a tenant-shareholder. (Compl. § 38). “Essential to the maintenance of an action to determine a claim to real property is that the complaint state a claim by the defendant, of ‘an estate or interest in the real property, adverse to that of the plaintiff (RPAPL 1515[1][b] emphasis added). Where, as here, the parties recognize that the basis of the tenant’s claim is an interest pursuant to a lease, no claim adverse to the landlord’s interest in the property is asserted, and the complaint fails to state a cause of action.” ll East 41" Street Assocs. vy. 18 East 42" Street, L.P., 248 A.D.2d 112, 114, 669 N.Y.S.2d 546, 548 (1* Dep’t 1998); see 87 Bowery Realty Corp. v. Qui Hui Chen, No. 106565/05, 2008 WL 2447335 at *4 (Sup. Ct., N.Y. County, June 18, 2008)(“the basis of the tenant[s’] claim is an interest pursuant to a lease, no claim adverse to the landlord’s interest in the property is asserted, and the complaint fails to state a cause of action.”) (internal quotation marks omitted). Moreover, as Plaintiff's request for declaratory relief merely recasts her breach of contract and tort claims in the form of a request for a declaratory judgment, it is improper and should be dismissed. See Anonymous, 92 A.D.2d at 789, 459 N.Y.S.2d at 779; Sullo, 2008 WL 2699542 at * 4: Barker, 2009 WL 1957740 at *9. Plaintiff has no unfettered “property” right to install any replacement machines of her choice in perpetuity, in any manner she sees fit and in contravention of all of the governing corporate documents she agreed to. As the court held in Cannon Point North, Inc. v. Abeles, 160 Misc. 2d 30, 32, 612 N.Y.S.2d 289, 290 (App. Term., 1" Dep’t, 1993): The fact that respondents were permitted to maintain their appliances with the apparent knowledge of various building employees did not preclude petitioner’s board of directors from establishing and enforcing a specific house rule addressed to this subject. Pursuant to the proprietary leases, the board at any time could ‘alter amend and repeal’ the house rules, and it cannot be reasonably argued that respondents had somehow acquired vested rights in the continued maintenance of these machines. Having chosen the cooperative form of ownership, [respondents are] bound to abide by the rules and regulations governing its operation. Plaintiff's Second Cause of Action also seeks an injunction “barring defendants, and every person claiming under any of them, from interfering with her interest in the apartment, including but not limited to, her continued use of the existing dryer vent and replacement of the laundry machines. (Compl. §42(b)). Since the Complaint fails to state any substantive cause of action against defendants, Plaintiff's claim for injunctive relief must be dismissed. See Alliance Network, 2014 WL 1258222 at *11. As is set forth herein, all other claims in the Complaint fail as a matter of law. Accordingly, Plaintiff's Second Cause of Action for an injunction under 12 RPAPL §1515 or otherwise should be dismissed because there are no viable claims alleged in the Complaint to remedy with an injunction. Furthermore, as the Court has already held, Plaintiff's allegations do not demonstrate the requisite irreparable harm for the issuance of an injunction. (Margolis Aff. Ex. H); see Peyton, 2013 WL 2165330 at *2. Plaintiff will not be irreparably harmed by using the Building Laundry Room or following proper procedure in the Co-op to obtain approval for installation of one of the washer and dryer models approved by the Board. Accordingly, Plaintiff's Second Cause of Action for declaratory and injunctive should be dismissed. Iv. PLAINTIFF’S THIRD CLAIM FOR PRIMA FACIE TORT AGAINST NARDONE SHOULD BE DISMISSED Plaintiff's Third Cause of Action for prima facie tort against Nardone is based upon Nardone (i) allegedly “compelling” Plaintiff to perform alterations and repairs in her apartment and (ii) allegedly filing a “false and misleading” affidavit in opposition to Plaintiff's unsuccessful motion for a preliminary injunction. (Compl. {§ 49-52). A claim for prima facie tort requires intentional infliction of harm, causing special damages, without excuse or justification, by an act or series of acts that would otherwise be lawful. Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984). The allegations in the complaint must also demonstrate that the sole motivation for the tortious conduct was “disinterested malevolence.” Jd. Special damages must be pled with particularity. See Havell v. Islam, 292 A.D.2d 210, 739 N.Y.S.2d 371, 372 (1" Dep’t 2002). Such damages must be alleged “with sufficient particularity to identify actual losses and be related causally to the alleged tortious acts.” Ginsberg v. Ginsberg, 84 A.D.2d 573, 574, 443 N.Y.S.2d 439, 441 (2d Dep’t 1981). Damages that are “conjectural in identity or speculative in amount” are insufficient to support a cause of action for prima facie tort. Vigoda v. DCA Prod. Plus, Inc., 293 A.D.2d 265, 266, 741 N.Y.S.2d 20, 23 (1 Dep’t 2002). “What is, in effect, a restatement of the complaint's breach of contract and intentional tort claims cannot be 13 made to stand independently as a prima facie tort... . Prima facie tort should not become a ‘catch-all’ alternative for every cause of action which cannot stand on its legs.” Gertler v. Goodgold, 107 A.D.2d 481, 490, 487 N.Y.S.2d 565, 572 (1 Dep’t 1985)(internal quotation marks omitted). Here, Plaintiff's Third Cause of Action for prima facie tort is, in effect, merely a restatement of her breach of contract and other tort claims and should be dismissed. Plaintiff simply alleges that Nardone “compelled” Plaintiff to perform “unnecessary” alterations and repairs” in her apartment and that such conduct “constitutes a prima facie tort.” (Compl. fff 49- 50, 53). Thus, Plaintiff, improperly attempts to use this claim as a catch-all alternative for her other unsustainable causes of action. The prima facie tort claim should be dismissed on this ground alone. See Gertler, 107 A.D.2d at 490, 487 N.Y.S.2d at 572. Moreover, Nardone has not “compelled” Plaintiff to alter her laundry room in any way. If Plaintiff does not want to follow Co-op House Rules and procedures for the installation of a new washer and dryer in her Unit, she remains free to use the Basement Laundry Room. Plaintiff also fails to allege special damages because no “actual losses” are alleged with specificity that are causally attributable to any alleged tortious conduct by Nardone. Plaintiff speculates that she “will be compelled to pay for unnecessary work to her apartment and, ultimately, to prosecute this action,” but fails to allege “actual” damage incurred. Plaintiff merely complains about inconvenience. Indeed, as Plaintiffs counsel explained at oral argument on Defendants motion to dismiss the First Amended Complaint: “if we can get the washing machine replaced it will be a lot easier for Mrs. Siller so she doesn’t have to carry laundry up and ° Plaintiff's newly minted allegations of “damage” are frivolous. On page 9 of her memorandum of law in opposition to defendants’ motion to dismiss the First Amended Complaint, Plaintiff argued that her monetary damages were “based on the cost of sending the laundry out for cleaning.” Yet, on the very next page, Plaintiff claimed “to have to endure” using and paying the cost of using the laundry machines in the Building Laundry Room. Plaintiff has apparently abandoned those allegations in favor of her latest theory. 14 down [in an elevator] to the basement. And that’s what this is about.” (Margolis Aff. Ex. H). Plaintiff also alleges that Nardone’s alleged failure to withdraw her affidavit submitted in opposition to Plaintiffs motion for a preliminary injunction has caused “damage” to Plaintiff. (Compl. {§52-54). However, Plaintiff — not Nardone — filed the motion for a preliminary injunction and the Court denied the motion based upon Plaintiff's utter failure to meet her burden to establish irreparable harm, not the contents of Nardone’s opposition. In addition, Plaintiff cannot allege that Nardone was solely motivated by disinterested malevolence. The 2010 and 2012 House Rules were adopted long before Plaintiff's washing machine broke in 2014. Accordingly, Plaintiff's Third Cause of Action for prima facie tort should be dismissed. Vv. PLAINTIFF’S FOURTH CAUSE OF ACTION FOR TORTIOUS INTERFERENCE WITH CONTRACT SHOULD BE DISMISSED The elements of a claim for tortious interference with contract are “the existence of a valid contract between the plaintiff and a third party, defendant’s knowledge of that contract, defendant’s intentional procurement of the third-party’s breach of the contract without justification, actual breach of the contract, and damages resulting therefrom.” Lama Holding v. Smith Barney Inc. 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 82 (1996). “In order for the plaintiff to have a cause of action for tortious interference with contract, it is axiomatic that there must be a breach of that contract by the other party. Jack L. Inselman & Co., Inc. v. FNB Financial Co., 41 N.Y.2d 1078, 1080, 396 N.Y.S.2d 347, 349 (1977) citing Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120, 151 N.Y.S.2d 1, 5 (1956). “Ever since tortious interference with contractual relations made its first cautious appearance in the New York Reports...our Court has repeatedly linked the availability of the remedy with a breach of contract.” NBT Bancorp Inc. v. Fleet/Norstar Financial Group, Inc., 87 N.Y.2d 614, 620, 641 N.Y.S.2d 581, 584 (1996). See e.g, 2626 Bway LLC v. Broadway Metro Assocs., LP, No. 105586/2010, 2011 WL 3631959 at *6 (Sup. Ct. N.Y. County, August 11, 2011)(dismissing tortious interference with contract claim where sublessor 1S alleged it was “prevented from subleasing” by its landlord, but “never allege[d] that [sublessee] breached the sublease.”); Israel, 1 N.Y.2d at 120, 151 N.Y.S.2d at 5 (1956) (affirming summary judgment dismissing tortious interference claim because “[a]n essential element of the case against [defendant] is the breach of the contract...[and the] cause of action must fail if there was no such breach.”); Lama Holding, 88 N.Y.2d at 424, 646 N.Y.S.2d at 82 (affirming dismissal of tortious interference claim where there was “no allegation that [defendant] intentionally procured {a third party’s] breach of its contract with [plaintiff] nor that [the third party] in fact breached its contract’). Where a contract is expressly contingent upon rights of a third party, the third party’s exercise of those rights cannot form the basis of a claim for tortious interference with contract. Levine v. Yorkell, 245 A.D.2d 138, 139, 665 N.Y.S.2d 962, 962 (1" Dep’t 1997)(dismissing prospective purchaser’s action for tortious interference with contract against cooperative apartment corporation because defendant’s refusal to approve purchase application was “, a contingency specifically contemplated in the contract of sale”); 2626 Bway, 2011 WL 3631959 at *7 (dismissing sublessor’s action against landlord for tortious interference with contract for refusing to consent to sublessee where “the sublease specifically contemplates such a refusal”); Tri- County Motors, Inc. v. American Suzuki Motor Corp., 494 F.Supp.2d 161, 175 (E.D.NY. 2007) (granting summary judgment to defendant and holding “[defendant] can incur no liability for tortious interference by simply exercising its right to not approve the sale transaction.”). Furthermore, “no cause of action for tortious inducement to breach a contract arises until actual damages are sustained.” 24/7 Records, Inc. vy. Sony Music Entertainment, Inc., 566 F.Supp.2d 305, 320 (S.D.N.Y. 2008). Where a plaintiff cannot prove compensatory damages as a result of a breach of contract by the party it contracted with, a claim against a third party for tortious interference with contract fails as a matter of law. Id. Here, as set forth as set forth infra Point VII, Plaintiff does not state a cause of action for breach of contract against the Co-op. A fortiori, there can be no tortious interference with contract claim against Nardone. Plaintiff*s tortious interference with contract claim (like her 16 prima facie tort claim) also fails because the 2010 and 2012 House Rules were adopted long before Plaintiff's washing machine broke in 2014. Furthermore, amendments to the House Rules and non-approval of a replacement washing machine were contingencies expressly contemplated by the parties. The By-laws provide: “The board of directors shall have power to make and change the house ru