Modern Art Services, Ltd., et al., respondents, v. OCA LLC (2011)

Argued—April 15, 2011

DECISION & ORDER

In an action to recover damages for private nuisance and breach of the covenant of quiet enjoyment, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated August 26, 2010, as denied that branch of its motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the complaint is granted.

The plaintiffs, tenants under a commercial lease, commenced this action against their landlord to recover damages for private nuisance and breach of the covenant of quiet enjoyment, alleging that the defendant, inter alia, harassed the plaintiffs and their employees, and interfered with the plaintiffs' businesses.

As the Supreme Court properly found, the defendant established its prima facie entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiffs' principal, which demonstrated that the plaintiffs did not suffer compensable damages.   Contrary to the Supreme Court's determination, however, the plaintiffs in opposition failed to demonstrate the existence of a triable issue of fact (see Safeguard Sec. v. Ryan, 225 A.D.2d 364;  cf.  Brauner v. Columbia Broadcasting Sys., 221 A.D.2d 306).   Moreover, the plaintiffs' claim for punitive damages fails in the absence of a viable claim for compensatory damages (Rocanova v Equitable Life Assur.   Socy. of U.S., 83 N.Y.2d 603, 616–617).

Accordingly, that branch of the defendant's motion which was for summary judgment dismissing the complaint should have been granted.

MASTRO, J.P., BALKIN, LEVENTHAL and BELEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court