Twinkle Play Corp. v. Alimar Props., Ltd.

• Decision Date: 16 September 2020
• Docket Number: 2018–10896,Index No. 503585/18
• Citation: 186 A.D.3d 1447,128 N.Y.S.3d 848 (Mem)
• Parties: TWINKLE PLAY CORP., Appellant, v. ALIMAR PROPERTIES, LTD., Respondent.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1447

128 N.Y.S.3d 848 (Mem)

TWINKLE PLAY CORP., Appellant,

v.ALIMAR PROPERTIES, LTD., Respondent.

2018–10896

Index No. 503585/18

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

Submitted—May 28, 2020

September 16, 2020

Peluso & Touger, LLP, New York, N.Y. (Carl T. Peluso and Qualia Hendrickson of counsel), for appellant.

Law Offices of Abe George, P.C., New York, NY, for respondent.

ALAN D. SCHEINKMAN, P.J., ROBERT J. MILLER, JOSEPH J. MALTESE, BETSY BARROS, 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 (Leon Ruchelsman, J.), dated July 18, 2018. The order, insofar as appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the third cause of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the third cause of action is denied.

In March 2017, the plaintiff, as tenant, and the defendant, as landlord, entered into a commercial lease, whereby the plaintiff was to open and operate a children's play and party space on the ground floor of a building owned by the defendant in Brooklyn. In February 2018, the plaintiff commenced this action against the defendant, asserting, inter alia, a cause of action sounding in breach of contract. The plaintiff alleged that the defendant had refused to sign certain paperwork required by the New York City Department of Buildings (hereinafter the DOB) in order for the plaintiff to legally operate its business, causing the plaintiff to suffer lost revenues. The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. In an order dated July 18, 2018, the Supreme Court granted the motion. The plaintiff appeals from so much of the order as granted that branch of the motion which was to dismiss the third cause of action, sounding in breach of contract.

"In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the complaint must be accorded a liberal construction, the facts as alleged therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference" ( 255 Butler Assoc., LLC v. 255 Butler, LLC, 173 A.D.3d 655, 656, 102 N.Y.S.3d 699 [internal quotation marks omitted]; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "In determining such a motion, the court may freely consider additional facts contained in affidavits submitted by the plaintiff to remedy any defects in the complaint" ( Sheridan v. Carter, 48 A.D.3d 444, 445, 851 N.Y.S.2d 248 ). "[W]hether the pleading will later survive a motion for summary judgment, or whether the party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss" ( Lieberman v. Green, 139 A.D.3d 815, 816, 32 N.Y.S.3d 239 ).

"The essential elements for pleading a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach" ( Neckles Bldrs., Inc. v. Turner, 117 A.D.3d 923, 924, 986 N.Y.S.2d 494 ). "A covenant of good faith and fair dealing is implied in all contracts, encompassing any promises which a reasonable person in the position of the promisee would be justified in understanding were included and which are not inconsistent with the terms of the contract" ( Turkat v. Lalezarian Developers, Inc., 52 A.D.3d 595, 596, 860 N.Y.S.2d 153 ; see 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 153, 746 N.Y.S.2d 131, 773 N.E.2d 496 ). "The implied covenant of good faith and fair dealing is breached when a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement" ( Atlas El. Corp. v. United El. Group, Inc., 77 A.D.3d 859, 861, 910 N.Y.S.2d 476 [internal quotation marks omitted] ).

Here, accepting as true the allegations of the complaint, augmented...