

Suarez v Axelrod Fingerhut & Dennis (2016 NY Slip Op 05958)





Suarez v Axelrod Fingerhut & Dennis


2016 NY Slip Op 05958


Decided on September 8, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on September 8, 2016

Mazzarelli, J.P., Acosta, Moskowitz, Gische, Webber, JJ.


839 150374/14

[*1]Cruz Suarez, et al., Plaintiffs-Appellants-Respondents,
vAxelrod Fingerhut & Dennis, et al., Defendants-Respondents-Appellants, Turin Housing Development Fund, Co., Inc., et al., Defendants-Respondents.


Bierman & Associates, New York (Mark H. Bierman of counsel), for appellants-respondents.
L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Noah Nunberg of counsel), for respondents-appellants.
Lewis Brisbois Bisgaard & Smith LLP, New York (Mark K. Anesh and Jaime R. Wozman of counsel), for Turin Housing Development Fund, Co., Inc., Richard J. Thomas, Harvey Minsky, Ellen Durant, Martha Miller, Linda Burstion, Angela Faison-Strobe, Jacqueline Seidenberg, Evelyn Rivera and Veronica Jimenez, respondents.
Cantor, Epstein & Mazzola, LLP, New York (Gary Ehrlich of counsel), for Elliman Property Management, Deborah Hassell-Dobies and Patricia Pettway-Brown, respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered January 30, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment as to liability on the cause of action for wrongful eviction in Alix and Brea's favor and the causes of action for breach of the covenant of quiet enjoyment, breach of fiduciary duty, conversion, trespass to chattels, and breach of contract, and for treble damages under RPAPL 853, and, upon a search of the record, granted summary judgment dismissing the causes of action for breach of the covenant of quiet enjoyment, conversion, and trespass to chattels, and granted plaintiffs' motion for summary judgment dismissing defendant Axelrod Fingerhut & Dennis's (Axelrod) affirmative defenses of lack of standing, lack of fiduciary duty and lack of privity, unanimously modified, on the law, to grant plaintiffs summary judgment as to liability on the cause of action for wrongful eviction on behalf of Alix and Brea as against defendant Turin Housing Development Fund, Co., Inc. (Turin), to grant summary judgment, upon a search of the record, dismissing the cause of action for breach of fiduciary duty, and to deny plaintiffs' motion as to Axelrod's affirmative defenses of lack of standing and lack of privity, and otherwise affirmed, without costs.
The record demonstrates conclusively that the eviction of plaintiffs Alix and Brea by Turin was wrongful, inasmuch as Alix and Brea were unrefutedly known occupants of the apartment. Thus, Alix and Brea are entitled to summary judgment on the cause of action for wrongful eviction as against Turin. However, issues of fact preclude summary judgment on that cause of action as against the remaining defendants, and with respect to plaintiffs' other causes of action, including the claim for breach of contract. The court also correctly denied plaintiffs summary judgment on their claim for treble damages under RPAPL 853 on the ground that the amount of the claim must be evaluated upon a full record (see Mayes v UVI Holdings, 280 AD2d 153 [1st Dept 2001]).
The court correctly dismissed the causes of action for breach of the covenant of quiet [*2]enjoyment, conversion, and trespass to chattels since in the specific context of a wrongful eviction action these claims "do not constitute cognizable causes of action but merely state demands for damages to be considered as elements of the statutory cause of action [wrongful eviction] upon which summary relief is sought" (id. at 161).
Upon a search of the record, we grant summary judgment dismissing the cause of action for breach of fiduciary duty. No such duty is owed to plaintiffs by any of the defendants (see Peacock v Herald Sq. Loft Corp., 67 AD3d 442, 443 [1st Dept 2009]).
The court erred in dismissing Axelrod's affirmative defenses of lack of standing and lack of privity. These defenses are not
prima facie meritless with respect to the cause of action for negligence.
The Decision and Order of this Court entered herein on April 14, 2016 is hereby recalled and vacated (see M-2656 decided simultaneously herewith).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 8, 2016
CLERK


