TOUR CENTRAL PARK INC v. THOR 38 PARK ROW LLC (2024)

Order, Supreme Court, New York County (Louis L. Nock, J.), entered on December 23, 2022, which, insofar as appealed from, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants demonstrated entitlement to summary judgment dismissing the complaint by submitting evidence that they returned plaintiff's full security deposit.  In opposition, plaintiff did not dispute that the deposit was returned or submit any other evidence to support a finding of damages or special damages (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  CPLR 3212]).  The lack of damages defeats the breach of contract and unjust enrichment claims (see Lexington 360 Assoc. v. First Union Natl. Bank of N. Carolina, 234 A.D.2d 187, 189–190, 651 N.Y.S.2d 490 [1st Dept. 1996]), and the absence of special damages requires dismissal of the prima facie tort claim (see Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142–143, 490 N.Y.S.2d 735, 480 N.E.2d 349 [1985]).

The court properly dismissed the breach of implied covenant of good faith and fair dealing claim as duplicative to the extent it was based on the same facts underlying the breach of contract claim (Logan Advisors, LLC v. Patriarch Partners, LLC, 63 A.D.3d 440, 443, 879 N.Y.S.2d 463 [1st Dept. 2009]).  That claim is also inconsistent with the terms of the lease which permitted landlord to terminate early and did not limit landlord's right to lease other space in the building to businesses that compete with plaintiff.  The “covenant of good faith and fair dealing ․ cannot be construed so broadly as effectively to nullify other express terms of a contract, or to create independent contractual rights” (Fesseha v. TD Waterhouse Inv. Servs., Inc., 305 A.D.2d 268, 268, 761 N.Y.S.2d 22 [1st Dept. 2003]).  The fraudulent inducement claim fails both for lack of damages, and because it only alleged that defendants were not sincere in their promise to perform under the alleged oral contract (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763 [1995];  see also MMCT, LLC v. JTR Coll. Point, LLC, 122 A.D.3d 497, 499, 997 N.Y.S.2d 374 [1st Dept. 2014]).

Plaintiff did not demonstrate that there are facts essential to justify opposition to the summary judgment motion which are exclusively within defendants’ knowledge and control, which would warrant denying the motion as premature (CPLR 3212[f];  see Global Mins. and Metals Corp. v. Holme, 35 A.D.3d 93, 102–103, 824 N.Y.S.2d 210 [1st Dept. 2006], lv denied, 8 N.Y.3d 804, 831 N.Y.S.2d 106, 863 N.E.2d 111 [2007]).

We have considered plaintiff's remaining contentions and find them unavailing.