SINENSKY v. ROKOWSKY (2005)

In an action, inter alia, to recover damages for housing discrimination based on disability in violation of Executive Law § 296, Administrative Code of City of New York § 8-107(5), and the Fair Housing Act (42 USC § 3601 et seq.), for breach of fiduciary duty, tortious interference with contract, and declaratory and injunctive relief, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated December 9, 2004, as granted those branches of the separate cross motions of the defendant Solomon Rokowsky, and the defendants Victor Fein, Stanley Weiss, the Board of Directors of Premier House, Inc., and Premier House, Inc., which were to dismiss the causes of action to recover damages for housing discrimination and breach of fiduciary duty pursuant to CPLR 3211(a)(1) and (7) insofar as asserted against them and denied their motion to enjoin the defendant Solomon Rokowsky, inter alia, from conveying shares of stock in a certain cooperative apartment to anyone other than the plaintiff Gary Sinensky, and the defendants Victor Fein, Stanley Weiss, the Board of Directors of Premier House, Inc., and Premier House, Inc., and the defendant Solomon Rokowsky separately cross-appeal, as limited by their respective briefs, from so much of the same order as denied those branches of their separate cross motions which were to dismiss the cause of action to recover damages for tortious interference with contract pursuant to CPLR 3211 (a)(1) and (7) insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the separate cross motions of the defendant Solomon Rokowsky and the defendants Victor Fein, Stanley Weiss, the Board of Directors of Premier House, Inc., and Premier House, Inc., which were to dismiss the cause of action to recover damages for housing discrimination based on disability in violation of Executive Law § 296, Administrative Code of City of New York § 8-107(5), and the Fair Housing Act (42 USC § 3601 et seq.) pursuant to CPLR 3211(a)(1) and (7) insofar as asserted against them and substituting therefor a provision denying those branches of the cross motions;  as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

 In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  see Rochdale Vil. v. Zimmerman, 2 A.D.3d 827, 769 N.Y.S.2d 386;  Board of Educ. v. County of Westchester, 282 A.D.2d 561, 724 N.Y.S.2d 422).   Applying these principles to the instant case, the amended complaint and supporting affidavits “adequately alleged for pleading survival purposes” a cause of action for housing discrimination based on disability (Leon v. Martinez, supra at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511).

Moreover, assuming the truth of the allegations, and affording the plaintiffs every favorable inference (see Schneider v. Hand, 296 A.D.2d 454, 744 N.Y.S.2d 899), they have sufficiently pleaded a cause of action to recover damages for tortious interference with contract (see Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289;  Bernberg v. Health Mgt. Sys., 303 A.D.2d 348, 349, 756 N.Y.S.2d 96;  Kravtsov v. Thwaites Terrace House Owners Corp., 267 A.D.2d 154, 155, 700 N.Y.S.2d 177).   Consequently, the Supreme Court properly declined to dismiss that cause of action.

 However, the plaintiff Gary Sinensky, as the contract vendee of shares in the defendant cooperative corporation, was not a party to the proprietary lease between the corporation and the seller and, as such, no fiduciary duty was owed to him (see generally Leist v. Goldstein, 305 A.D.2d 468, 469, 760 N.Y.S.2d 191;  Pesochinsky v. 77 Bleecker St. Corp., 250 A.D.2d 494, 672 N.Y.S.2d 879;  Pober v. Columbia 160 Apts. Corp., 266 A.D.2d 6, 697 N.Y.S.2d 619).   Accordingly, the Supreme Court correctly dismissed the cause of action to recover damages for breach of fiduciary duty.

Finally, we conclude that the Supreme Court providently exercised its discretion in denying the plaintiffs' motion to enjoin the defendant Solomon Rokowsky, inter alia, from conveying shares of stock in the subject apartment to anyone other than the plaintiff Gary Sinensky.   There are sharp factual disputes as to key issues in the record which preclude a finding of likelihood of success on the merits at this juncture (see Price Paper & Twine Co. v. Miller, 182 A.D.2d 748, 750, 582 N.Y.S.2d 746;  Schneider Leasing Plus v. Stallone, 172 A.D.2d 739, 569 N.Y.S.2d 126;  Matter of Coalition of United Peoples v. Brady, 161 A.D.2d 641, 643, 556 N.Y.S.2d 348;  Merrill Lynch Realty Assoc. v. Burr, 140 A.D.2d 589, 593, 528 N.Y.S.2d 857).