MCMAHON v. Nova Restoration of N.Y. Inc., et al., Defendants. (2018)

Orders, Supreme Court, New York County (Geoffrey D.S. Wright, J.), entered August 2, 2016 and April 25, 2017, which, respectively, granted in part and denied in part defendants' motion to dismiss the complaint, and granted in part and denied in part defendants' motion to resettle and reargue the prior order, and order, same court (Erika M. Edwards, J.), entered October 10, 2017, which granted plaintiffs' motion for a preliminary injunction directing defendants to make the requested repairs to common elements of the building, unanimously affirmed, with costs.

Although so much of defendants' post-answer motion as sought to dismiss plaintiffs' claims under CPLR 3211(a)(1) was untimely, the court properly decided so much of the motion as sought dismissal under CPLR 3211(a)(7) for failure to state a cause of action, which may be made at any time (see CPLR 3211(e);  see e.g. Chuqui v. Church of St. Margaret Mary, 39 A.D.3d 397, 835 N.Y.S.2d 74 [1st Dept. 2007] ).  The record does not show that the court improperly relied upon documentary evidence in deciding the motion (see generally Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ).  The court properly dismissed the tort and contract claims against the managing agent defendant, Andrews, who was at all times acting as agent for a disclosed principal, the condominium defendant, Cobblestone.  There was no evidence of Andrews' intention to substitute or superadd its liability for, or to, that of Cobblestone, and it was not in exclusive control of the building (see Brasseur v. Speranza, 21 A.D.3d 297, 299, 800 N.Y.S.2d 669 [1st Dept. 2005] ).

The court properly declined to dismiss the causes of action relating to Cobblestone's contractual and statutory duties to repair and maintain the roof over the plaintiffs' penthouse (see Daitch v. Naman, 25 A.D.3d 458, 807 N.Y.S.2d 95 [1st Dept. 2006] ), and properly dismissed the negligence cause of action against it.  The allegations concerning Cobblestone's defective work sound in breach of contract, not negligence (see Board of Mgrs. of Soho N. 267 W. 124th St. Condominium v. NW 124 LLC, 116 A.D.3d 506, 507, 984 N.Y.S.2d 17 [1st Dept. 2014] ).  The complaint also fails to allege conduct that approaches the level of outrageousness or extremity necessary to support a claim of intentional infliction of emotional distress (see Howell v. New York Post Co., 81 N.Y.2d 115, 121–122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ).  Plaintiffs' cause of action seeking an abatement fails since their unit did not suffer a “casualty loss” as required under the bylaws (see Schottenstein v. Windsor Tov, LLC, 85 A.D.3d 546, 924 N.Y.S.2d 788 [1st Dept. 2011], lv dismissed 18 N.Y.3d 879, 939 N.Y.S.2d 292, 962 N.E.2d 784 [2012] ).

The court properly denied dismissal of the injunctive relief claim and properly granted plaintiffs' subsequent motion for a preliminary injunction requiring Cobblestone to make all necessary repairs to prevent further infiltration of water in plaintiffs' unit.  Plaintiff demonstrated a likelihood of success on the merits, the prospect of irreparable harm absent an injunction and a balance of equities in their favor (see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 800 N.Y.S.2d 48, 833 N.E.2d 191 [2005] ).