Bostany v. Trump Org. Llc
| Decision Date | 20 October 2011 |
| Citation | 2011 N.Y. Slip Op. 07357,88 A.D.3d 553,931 N.Y.S.2d 280 |
| Parties | John P. BOSTANY, Plaintiff–Respondent,v.TRUMP ORGANIZATION LLC, et al., Defendants–Appellants. |
| Court | New York Supreme Court — Appellate Division |
88 A.D.3d 553
931 N.Y.S.2d 280
2011 N.Y. Slip Op. 07357
John P. BOSTANY, Plaintiff–Respondent,
v.
TRUMP ORGANIZATION LLC, et al., Defendants–Appellants.
Supreme Court, Appellate Division, First Department, New York.
Oct. 20, 2011.
[931 N.Y.S.2d 281]
Newman Ferrara LLP, New York (Glenn H. Spiegel of counsel), for appellants.Profeta & Eisenstein, New York (Fred R. Profeta, Jr. of counsel), for respondent.GONZALEZ, P.J., MAZZARELLI, SWEENY, ABDUS–SALAAM, ROMÁN, JJ.[88 A.D.3d 553] Order, Supreme Court, New York County (Milton A. Tingling, J.), entered October 18, 2010, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing the complaint and granting a money judgment against plaintiff, and denied defendants' motion to amend the petition in the nonpayment proceeding to add subsequently accruing rent and to request a hearing on attorneys' fees and costs without prejudice to renewal at the proper juncture, unanimously modified, on the law, to grant summary judgment dismissing the third (unjust enrichment), eighth (partial actual [88 A.D.3d 554] eviction), tenth (loss of business), eleventh (negligence—mold), thirteenth (tortious interference with business), and fourteenth (declaratory judgment) causes of action, and otherwise affirmed, without costs.
Where the record evidence showed that the subject building was known as the Trump Building, that plaintiff was induced to sign the lease by an executive vice president of Trump Organization, that the lease was actually signed by Donald Trump (albeit on behalf of 40 Wall), that employees of Trump Organization dealt directly with plaintiff and contractors regarding the leaks and repairs, and plaintiff's testimony that certain rent payments were made to Trump Organization, summary judgment was properly denied, based on issues of fact as to the relationship between Trump Organization and 40 Wall ( Fogel v. Hertz Intl., 141 A.D.2d 375, 376, 529 N.Y.S.2d 484 [1988] ).
Summary judgment was properly denied as to the seventh cause of action for partial constructive eviction, as plaintiff has established issues of fact as to whether defendants' allegedly wrongful acts “substantially and materially deprive[d][him] of the beneficial use and enjoyment of the premises” (Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d 167, 172, 904 N.Y.S.2d 407 [2010] [citation and internal quotation marks omitted] ). Although in cases of partial eviction the tenant's refusal
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...or was on notice that the problems continued based solely on these internal maintenance requests. Cf. Bostany v. Trump Org. LLC , 88 A.D.3d 553, 931 N.Y.S.2d 280, 282 (2011) (denying summary judgment on partial constructive eviction claim because the "[p]laintiff's proof, which included a s......
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...beneficial use of the premises. Eastside Exhibition Corp. v. 210 E. 86th St. Corp.,18 N.Y.3d 617, 623 (2012); Bostany v. Trump Org. LLC, 88 A.D.3d 553, 554-55 (1st Dep't 2011); Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d at 172; Marchese v. Great Neck Terrace Assoc., L.P., 138 A.......
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...lv dismissed 95 N.Y.2d 791, 711 N.Y.S.2d 158, 733 N.E.2d 230 [2000] ; see generally CPLR 3211[a][4] ; Bostany v. Trump Org. LLC , 88 A.D.3d 553, 554, 931 N.Y.S.2d 280 [1st Dept. 2011] ...
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