Fisher v. Queens Park Realty Corp.

• Decision Date: 15 January 1973
• Citation: 41 A.D.2d 547,339 N.Y.S.2d 642
• Parties: Morris B. FISHER et al., Appellants, v. QUEENS PARK REALTY CORP., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 642

339 N.Y.S.2d 642

41 A.D.2d 547

Morris B. FISHER et al., Appellants, v. QUEENS PARK REALTY CORP., et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Jan. 15, 1973.

Before RABIN, P.J., and HOPKINS, MARTUSCELLO, LATHAM and CHRIST, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for prima facie willful tort, plaintiffs appeal from an order of the Supreme Court, Queens County, dated February 24, 1971, which granted defendants' motion to dismiss the complaint for failure to state a cause of action.

Order reversed, with $10 costs and disbursements, and motion denied.

In a 49-paragraph complaint, plaintiffs set forth four causes of action arising out of what they call a prima facie willful tort surrounding an oral agreement for the leasing of an apartment in a rent controlled building. In the first cause of action, which seeks compensatory damages of $150,000, plaintiffs allege an oral agreement for the leasing to them of an apartment for a period of two years with defendants' renting agent who represented to plaintiffs that she had authority to make said agreement and to cause it to be consummated by execution of a written lease thereafter. The leasehold was to commence on August 1, 1968 and terminate on July 31, 1970. On May 17, 1968, the same day on which plaintiffs entered into the oral agreement, they paid, by checks to the landlord defendants, one month's rent and one month's security for the subject premises. In order to facilitate the execution of the lease, said defendants delivered at least two form leases to plaintiffs which were signed by them and returned to said defendants.

On July 31, 1968, the superintendent of the premises delivered the key to plaintiffs. Thereafter, plaintiffs had the apartment painted and decorated at their own expense. Said defendants then had several old appliances removed and had a new sink and stove installed.

Plaintiffs allege further that on August 23, 1968 said defendants and their agents acting on their behalf negotiated and entered into a lease agreement for themselves, for the subject premises, with defendants Altholtz. On the same day, the landlord defendants caused the locks on the apartment in question to be changed, thereby effectively barring plaintiffs from entry to the premises. However, on the same day, plaintiffs were able to gain entry into the apartment and were able to exclude all others by locking the doors and nailing the windows. Later the same day, defendants returned to said apartment with a contingent of policemen and one of them accused plaintiff Morris B. Fisher of committing assault and menacing. Thereafter, said defendant obtained a summons charging said plaintiff with harassment. Following this incident, plaintiffs were able to remain in possession of the apartment.

Thereafter, on August 26, 1968, the landlord defendants caused the electrical current flowing into the apartment to be discontinued. Despite all efforts on behalf of plaintiffs to restore the electrical current, they were unable to do so and were compelled to vacate the premises and to seek other temporary quarters.

On November 19, 1968 defendants commenced an action in the Civil Court of the City of New York for the recovery of possession of the premises. On March 5, 1969 an order was made and entered in that action denying defendants the relief which they had sought therein. By reason of the foregoing, plaintiffs claim damages of $150,000.

The second cause of action repeats all of the allegations of the first cause of action and alleges further that defendants, acting in concert pursuant to a common scheme, maliciously committed and made false representations with intent to injure and damage plaintiffs and to cause plaintiffs harm and anguish without just cause.

The third cause...