FARKAS v. RIVER HOUSE REALTY CO INC (2019)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 16, 2018, which, insofar as appealed from, granted defendants' motions to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

Plaintiff owned a cooperative apartment (the Apartment) in the building owned by defendant River House.  Plaintiff entered into a contract to sell the Apartment to the French Republic, for use as the official residence of its ambassador to the United Nations.  Plaintiff alleges that defendants violated the anti-housing discrimination provisions of the New York State and City Human Rights Laws (State and City HRLs), or aided and abetted the violation of those statutes, by imposing uniquely onerous conditions on approval of the sale (see Executive Law § 296[5][a][2];  Administrative Code of City of N.Y. § 8–107[5][a][1][b] ).  Plaintiff has failed to state a claim under any of these statutes, however, as she has failed to plead any concrete factual allegations in support of her claim that defendants were motivated to frustrate the sale by anti-French bias (see McCabe v. Consulate Gen. of Can., 170 A.D.3d 449, 450, 96 N.Y.S.3d 23 [1st Dept. 2019];  Askin v. Department of Educ. of the City of N.Y., 110 A.D.3d 621, 622, 973 N.Y.S.2d 629 [1st Dept. 2013] ).

This defect is likewise fatal to plaintiff's claims under Civil Rights Law (CRL) § 19–a.  Plaintiff has further failed to plead that River House is a “publicly assisted housing accommodation” (CRL § 18–b[3][e] ), a necessary element of a claim brought under CRL article 2–a (see CRL § 18–e;  Sisters of Resurrection, N.Y. v. Country Horizons, 257 A.D.2d 729, 731, 682 N.Y.S.2d 486 [3d Dept. 1999];  Bachman v. State Div. of Human Rights, 104 A.D.2d 111, 111, 114, 481 N.Y.S.2d 858 [1st Dept. 1984] ).

Plaintiff has failed to plead that there was an actual breach of her contract with the French Republic, an indispensable element of a claim for tortious interference with contract (see NBT Bancorp v. Fleet/Norstar Fin. Group, 87 N.Y.2d 614, 620–621, 641 N.Y.S.2d 581, 664 N.E.2d 492 [1996];  Alavian v. Zane, 101 A.D.3d 475, 476, 956 N.Y.S.2d 10 [1st Dept. 2012], lv denied 21 N.Y.3d 862, 2013 WL 4516423 [2013] ).  Moreover, even according plaintiff the benefit of every favorable inference on this motion to dismiss on the pleadings, the record indicates that defendant Kabler, against whom plaintiff levels her tortious interference claim, had “justification” for opposing the sale (see White Plains Coat & Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d 422, 426, 835 N.Y.S.2d 530, 867 N.E.2d 381 [2007] ).

We have no occasion to consider Kabler's request for sanctions, in light of her failure to cross-appeal from the denial of her sanctions request below (see Seldon v. Spinnell, 95 A.D.3d 779, 779, 945 N.Y.S.2d 666 [1st Dept. 2012], lv denied 20 N.Y.3d 857, 2013 WL 149767 [2013] ).