Bostany v. Trump Org. Llc

• Decision Date: 20 October 2011
• Citation: Bostany v. Trump Org. Llc, 88 A.D.3d 553, 931 N.Y.S.2d 280, 2011 N.Y. Slip Op. 7357 (N.Y. App. Div. 2011)
• 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.

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.

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 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 to pay rent constitutes an election of remedies, and the tenant has no claim for damages, a tenant who elects to remain in possession and pay the rent after a partial eviction may claim damages from his lessor which include consequential damages ( seeFrame v. Horizons Wine & Cheese,95 A.D.2d 514, 519, 467 N.Y.S.2d 630[1983] ).Thus, plaintiff has not foreclosed all other remedies in this case, and the issue becomes one of proof ( seeP.W.B. Enters. v. Moklam Enters.,243 A.D.2d 350, 663 N.Y.S.2d 163[1997] ).

Plaintiff's proof, which included a subtenant loss report, subtenant affirmations, and letters of complaint sent by plaintiff to an executive of Trump Organization, has established issues of fact that defendants may have repaired, but failed to rectify,...