BUDOW SALES CORP v. Eli Dahan, etc., et al., Defendants–Respondents. (2019)

Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered on or about March 26, 2018, which, to the extent appealed from as limited by the briefs, granted defendant Eli Dahan's cross motion for summary judgment dismissing the complaint as against him, unanimously affirmed, with costs.

Contrary to plaintiffs' contentions, their cause of action for breach of contract was properly dismissed against Dahan.  The evidence in the record establishes that there was no sub-sublease between them and Dahan, whose company had entered into a written sublease with defendant Acrex, Inc. USA expressly giving the company “no right” to further sublease the premises without the written consent of Acrex.  Only Acrex had the authority to waive this contractual provision (see Bank Leumi Trust Co. of N.Y. v. Block 3102 Corp., 180 A.D.2d 588, 590, 580 N.Y.S.2d 299 [1st Dept. 1992], lv denied 80 N.Y.2d 754, 587 N.Y.S.2d 906, 600 N.E.2d 633 [1992] ).  The emails proffered by plaintiffs do not show otherwise, as they evince at most an understanding that plaintiffs and Dahan would be co-subtenants and do not set forth “the total space to be covered by the sublease, ․ the term agreed upon,” or “the necessity of obtaining the consent of the [sublandlord]” (Harlow Apparel v. Pik Intl., 106 A.D.2d 345, 345–346, 483 N.Y.S.2d 258 [1st Dept. 1984], lv denied 64 N.Y.2d 609, 489 N.Y.S.2d 1026, 478 N.E.2d 210 [1985];  see General Obligations Law § 5–703[2] ).  Additionally, plaintiffs proffered no admissible evidence of Dahan's breach or causation of damages, but offered only hearsay and speculation (see CPLR 3212[b];  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718[1980] ). Plaintiffs' fraud cause of action was also properly dismissed against Dahan.  They do not identify any “material misrepresentation of an existing fact” on which they relied, and testified, at most, that Dahan “entered into a contract with the intent not to perform,” which is insufficient to support a fraud claim (MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 87 A.D.3d 287, 293, 928 N.Y.S.2d 229 [1st Dept. 2011] ).

We have considered plaintiffs' remaining contentions and find them unavailing.