Cypress Med. Surgical Servs., LLC v. Jodol Realty Corp., 2017–08948

• Decision Date: 19 August 2020
• Docket Number: Index No. 507968/15,2017–08948
• Citation: 186 A.D.3d 666,127 N.Y.S.3d 307 (Mem)
• Parties: CYPRESS MEDICAL SURGICAL SERVICES, LLC, Appellant, v. JODOL REALTY CORP., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 666

127 N.Y.S.3d 307 (Mem)

CYPRESS MEDICAL SURGICAL SERVICES, LLC, Appellant,

v.JODOL REALTY CORP., et al., Respondents.

2017–08948

Index No. 507968/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 30, 2020

August 19, 2020

Richard A. Kraslow, P.C., Melville, NY, for appellant.

Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Michael J. Antongiovanni of counsel), for respondent Lorraine Rapuano, as executor of the estate of Dolores Rapuano.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated August 4, 2017. The order, insofar as appealed from, (1) granted that branch of the motion of Dolores Rapuano which was for summary judgment dismissing the cause of action to recover damages for breach of contract insofar as asserted against her, (2) granted those branches of the separate motion of the defendants Jodol Realty Corp. and Mordechai Tasma which were for summary judgment dismissing the cause of action to recover damages for breach of contract insofar as asserted against the defendant Jodol Realty Corp. and the cause of action to recover damages for fraudulent misrepresentation against Jodol Realty Corp., and (3) denied, as academic, the plaintiff's cross motion pursuant to CPLR 3025 for leave to amend the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff, Cypress Medical Surgical Services, LLC, as tenant, entered into an agreement with the defendant Jodol Realty Corp. to lease a portion of the subject property. The lease contained a clause providing a "first option to buy to" nonparty Angelo Messina and a "second option to buy to" the plaintiff. In May 2015, Jodol Realty Corp.'s sole shareholder, Dolores Rapuano (hereinafter Rapuano), sold her shares in Jodol Realty Corp. to the defendant Mordechai Tasma.

Subsequently, the plaintiff commenced this action against Jodol Realty Corp., Rapuano, and Tasma, asserting, inter alia, a cause of action to recover damages for breach of contract against Jodol Realty Corp. and Rapuano and a cause of action to recover damages for fraudulent misrepresentation against Jodol Realty Corp. Rapuano, among other things, moved for summary judgment dismissing the complaint insofar as asserted against her, and Jodol Realty Corp. and Tasma (hereinafter together the Jodol defendants) separately moved for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff opposed both motions and cross-moved for leave to amend the complaint to substitute Cypress Medical Surgical Services, LLP, as the plaintiff on the ground that Cypress Medical Surgical Services, LLC, is a nonexistent entity.

The Supreme Court granted the separate motions of Rapuano and the Jodol defendants, and denied the plaintiff's cross motion as academic. The plaintiff appeals. While the appeal was pending, Rapuano died, and Lorraine Rapuano, as executor of Rapuano's estate, was substituted as a defendant.

We agree with the Supreme Court that the sale by Rapuano of the shares in Jodol Realty Corp. did not constitute a sale of the subject property so as to trigger the rights of refusal under the lease. "[T]here is a ‘fundamental distinction between the property interests of a shareholder and the property interests of the corporation,’ and ‘ownership of capital stock is by no means identical with or equivalent to ownership of corporate property’ " ( Power Test Petroleum Distribs. v. Baker–Tripi Realty Corp., 190 A.D.2d 845, 847, 594 N.Y.S.2d 266 [citation omitted], quoting Helfand v. Cohen, 110 A.D.2d 751, 752, 487 N.Y.S.2d 836, and Brock v. Poor, 216 N.Y. 387, 401, 111 N.E. 229 ; see Torrey Delivery v. Chautauqua Truck Sales & Serv., 47 A.D.2d 279, 282–283, 366 N.Y.S.2d 506 ). Accordingly, absent a...