8902 CORPORATION v. HELMSLEY SPEAR INC

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

8902 CORPORATION, et al., Plaintiffs-Appellants, v. HELMSLEY-SPEAR, INC., et al., Defendants-Respondents.

Decided: November 29, 2005

FRIEDMAN, J.P., SULLIVAN, NARDELLI, WILLIAMS, SWEENY, JJ. Bianchi Macron LLP, Garden City (John J. Macron of counsel), for appellants. Michael J. Berman & Associates, P.C., New York (Michael J. Berman of counsel), for respondents.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered September 30, 2004, which, in an action by a commercial tenant and its principal (Leahy) against the landlord and managing agent arising out the termination of the parties' lease, inter alia, granted defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to reinstate Leahy's first cause of action for conversion, and otherwise affirmed, without costs.   Appeal from order, same court and Justice, entered on or about October 18, 2004, unanimously dismissed as abandoned, without costs.

 The tenant does not claim any legally cognizable interest in the personal property that, as conceded by defendants for present purposes, remained on the premises after the tenant's eviction.   Accordingly, the tenant has no cause of action for conversion.   However, as to Leahy, who claims to be the owner of such personalty, an issue of fact exists as to whether defendants unreasonably denied him access to the premises after the eviction, raised by, inter alia, Leahy's claim that he orally requested access multiple times but was refused (see Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ).   We affirm in all other respects.   Plaintiffs' allegations of conversion do not warrant an award of punitive damages (see Boston Concessions Group v. Criterion Ctr. Corp., 250 A.D.2d 435, 436, 673 N.Y.S.2d 111 [1998];  see also Buchwald & Assoc. v. Rich, 281 A.D.2d 329, 330, 723 N.Y.S.2d 8 [2001] ).   The cause of action for breach of contract was properly dismissed on the ground that plaintiffs never provided defendants with financial information about their prospective assignee as required by the lease, lacking which defendants cannot be found to have unreasonably withheld their consent to the requested assignment (see 200 Eighth Ave. Rest. Corp. v. Daytona Holding Corp., 293 A.D.2d 353, 740 N.Y.S.2d 330 [2002] ).   Dismissal of the cause of action for breach of contract necessarily requires dismissal of the cause of action for tortious interference with its prospective business relations, the claimed interference with the prospective assignee being a mere incident of the claimed breach of contract (see Rodriguez-Nunci v. Clinton Hous. & Dev. Co., 241 A.D.2d 339, 660 N.Y.S.2d 16 [1997] ).   The cause of action for bailment was properly dismissed for lack of evidence of an agreement by defendants to maintain the personal property left on the premises (see Funding Assistance Corp. v. Mashreq Bank, 277 A.D.2d 127, 717 N.Y.S.2d 46 [2000] ).