LEKHNER v. 205 54 HOUSE INC (2026)

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered June 17, 2025, which granted plaintiff's motion for leave to reargue her motion for a default judgment and defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7), and, upon reargument, adhered to its prior determinations, unanimously affirmed, without costs.

The court properly denied plaintiff's motion for a default judgment.  Plaintiff's service of a default motion was made in violation of CPLR 2103(a).

The court properly granted defendant's motion to dismiss plaintiff's first and third causes of action based on documentary evidence and for failure to state a claim.  As plaintiff acknowledges, she was issued a check for the surplus amount resulting from the sale of the subject cooperative apartment at auction to satisfy the judgment against her for nonpayment.  There was no contract implied-in-fact to auction the apartment shares with a minimum bid to protect plaintiff's potential profit (see 75 First Ave. Club LLC v. United Glass Sys. Corp., 223 A.D.3d 491, 493, 203 N.Y.S.3d 71 [1st Dept 2024] ).

Plaintiff's second cause of action, alleging violation of RPAPL 702 in connection with defendant's petition filed against plaintiff in a previous nonpayment proceeding, was barred by res judicata (see O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981] ).

Plaintiff's third cause of action for promissory estoppel was properly dismissed as duplicative of the breach of implied contract claim (see Kim v. Francis, 184 A.D.3d 413, 414, 125 N.Y.S.3d 411 [1st Dept 2020] ).  The promissory estoppel claim was based on the same allegation as the breach of implied contract claim that plaintiff was entitled to a certain amount from the auction sale of the apartment.

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