JACOBS PRIVATE EQUITY LLC v. 450 PARK LLC

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Supreme Court, Appellate Division, First Department, New York.

JACOBS PRIVATE EQUITY, LLC, Plaintiff-Appellant, v. 450 PARK LLC, Defendant-Respondent.

Decided: October 18, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, SWEENY, JJ. Orans, Elsen & Lupert LLP, New York (Robert L. Plotz of counsel), for appellant. Stempel Bennett Claman & Hochberg, P.C., New York (Richard L. Claman of counsel), for respondent.

Order, Supreme Court, New York County (Diane A. Lebedeff, J.), entered on or about April 5, 2005, which, inter alia, granted defendant's cross motion pursuant to CPLR 3211 to dismiss the amended complaint, unanimously affirmed, with costs.

 The amended complaint fails to state a viable cause of action for repudiation/anticipatory breach of contract because it contains no allegation of a definite and final communication by defendant landlord of its intention to forgo its obligations under the lease (see Rachmani Corp. v. 9 E. 96th St. Apt. Corp., 211 A.D.2d 262, 266-267, 629 N.Y.S.2d 382 [1995] );  plaintiff tenant does not allege that defendant landlord definitively refused all future performance of its obligations under the lease if plaintiff did not accept the landlord's interpretation of the lease.

 Nor does the amended complaint allege viable causes of action for breach of contract, rescission, breach of the implied covenant of good faith and fair dealing, and/or constructive eviction.   The alleged breach by defendant landlord of the covenant not to unreasonably withhold consent to subletting does not defeat the purpose of the contract so substantially as to support a claim for rescission (see Babylon Assocs. v. County of Suffolk, 101 A.D.2d 207, 215, 475 N.Y.S.2d 869 [1984];  601 W. 26 Corp. v. John Wiley & Sons, Inc., 32 A.D.2d 522, 298 N.Y.S.2d 1018 [1969] ).   The cause of action for breach of the implied covenant of good faith and fair dealing was properly dismissed as duplicative of the insufficient breach of contract claim (see Triton Partners LLC v. Prudential Secs. Inc., 301 A.D.2d 411, 752 N.Y.S.2d 870 [2003] ).   The cause of action for constructive eviction was properly dismissed since there is no claim that the alleged failure of the landlord to provide an operable alarm system substantially and materially deprived the tenant of the beneficial use and enjoyment of the premises (see Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83, 308 N.Y.S.2d 649, 256 N.E.2d 707 [1970] ).

We have considered plaintiff's remaining arguments and find them unavailing.