Opinion
Index No. 656460/2021
08-11-2023
Phyllis Buchman, Plaintiff, v. 117 East 72nd Street Corp., Richard Sterne, Nicholas Acuavella, Charles Ayres, Phillip Laskaway, Stephen Lessing, Lisa McCarthy, Terak Abdel-Meguid, Robert Pincus, Jean Goutal, Form Architecture, Formarch Interiors Inc., and Sean Webb, Defendants.
For Plaintiff John J. Malley Esq. Smith Buss & Jacobs For Defendants 117 East 72nd Street Corp., Stearne, Acuavella, Ayres, Laskaway, Lessing, McCarthy, Abdel-Meguid, and Pincus Maria Boboris Esq. Braverman Greenspun P.C. For Defendant Goutal Dennis A. Amore Esq. and Scott R. Matthews Esq. Windels Marx Lane & Mittendorf, LLP For Defendants Form Architecture, Formarch Interiors Inc., and Webb Patrick Palladino Esq. Milber Makris Plousadis & Seiden, LLP
Unpublished Opinion
For Plaintiff
John J. Malley Esq.
Smith Buss & Jacobs
For Defendants 117 East 72nd Street Corp., Stearne, Acuavella, Ayres, Laskaway, Lessing, McCarthy, Abdel-Meguid, and Pincus
Maria Boboris Esq.
Braverman Greenspun P.C.
For Defendant Goutal
Dennis A. Amore Esq. and Scott R. Matthews Esq.
Windels Marx Lane & Mittendorf, LLP
For Defendants Form Architecture, Formarch Interiors Inc., and Webb
Patrick Palladino Esq.
Milber Makris Plousadis & Seiden, LLP
Lucy Billings, J.
LUCY BILLINGS, J.S.C.
Defendants move in three separate motions to dismiss this action pursuant to C.P.L.R. § 3211(a)(1), (5), and (7). Plaintiff moves to amend her complaint and submits a proposed second amended complaint. Aff. of John J. Malley Ex. B, NYSCEF Doc. No. 58. For the reasons explained below, the court grants plaintiff's motion to amend her complaint (motion no. 003) and, with defendants' consent, applies all three motions for dismissal to the second amended complaint. The court then grants the motion by defendants Form Architecture, Formarch Interiors Inc., and Webb (motion no. 002) to dismiss the claims against these defendants. The court grants in part and denies in part defendant Goutal's cross-motion (motion no. 004) and the remaining defendants' motion (motion no. 001) to dismiss the claims against Goutal and the remaining defendants.
I. BACKGROUND FACTUAL ALLEGATIONS
Defendant 117 East 72nd Street Corp., a cooperative, owns a residential building at 117 East 72nd Street, New York County. Plaintiff owns shares in the cooperative associated with suites 1W and SR1C on the building's first floor. Plaintiff's husband, now deceased, used those premises as a medical office for over 50 years. Defendants Sterne, Acuavella, Ayre, Laskaway, Lessing, McCarthy, and Abdel-Meguid are current or former members of the cooperative's Board of Directors. Defendant Pincus was an employee of the cooperative's managing agent who served as the board's Assistant Secretary.
Defendant Goutal purchased the shares of the cooperative associated with suite 1E, also on the building's first floor, on or about January 13, 2015. That suite had long been used as a dermatologist's office. Goutal hired defendants Form Architecture, an architecture firm, Formarch Interiors, and Webb, an architect in the firm and a shareholder of Formarch Interiors, to renovate suite 1E into a residential apartment. These architect defendants submitted to the New York City Department of Buildings (DOB) signed forms and information that misrepresented plaintiff's premises as a residential apartment, rather than a medical office. The Building's Certificate of Occupancy (CO) in 2015 allowed at least one of the suites on the first floor to be used as a professional office. Goutal and Pincus, as the board's Assistant Secretary, signed an application to DOB to convert the professional suites on the first floor to residential apartments, so there would be no professional suites in the building. DOB then issued a CO for the building that limited the use of the entire first floor, including plaintiff's premises, to residential apartments rather than professional office space. Defendants did not provide notice of this change to plaintiff in advance or afterward.
In 2017, when plaintiff attempted to sell the shares associated with her premises, she discovered that the building's amended CO barred use of her premises as a medical office and allowed only residential use. The change reduced the premises' value and required extensive and expensive renovation to convert the premises to residential use. The cooperative denied plaintiff's request to re-amend the CO to allow use of her premises as a professional office.
II. THE MOTIONS
The first amended complaint claims breach of a fiduciary duty against defendant board members and Pincus; aiding and abetting breach of a fiduciary duty against Goutal; fraudulent concealment and negligent misrepresentation against Goutal and the architect defendants; and fraudulent concealment, breach of the covenant of good faith and fair dealing, and promissory estoppel against the cooperative. The first amended complaint also seeks injunctive relief against the cooperative, Goutal, and the architect defendants to apply to re-amend the CO and seeks attorneys' fees against the cooperative pursuant to plaintiff's proprietary lease and New York Real Property Law (RPL) § 234.
The cooperative, its board members, and Pincus (cooperative defendants) move to dismiss the first amended complaint against them pursuant to C.P.L.R. § 3211(a)(1) and (7) based on plaintiff's proprietary lease, which describes her premises as residential, and her failure to state a claim for which relief may be granted. The architect defendants move to dismiss the first amended complaint against them pursuant to C.P.L.R. § 3211(a)(1), (5), and (7) on the same bases and based on expiration of the applicable statutes of limitations.
Plaintiff moves to join the cooperative's Board of Directors as a defendant and amend her complaint a second time to claim breach of a fiduciary duty against the board as well as its members. C.P.L.R. §§ 1002(b), 3025(b). Plaintiff also moved for a default judgment against Goutal, who had not yet appeared in this action. Goutal then cross-moved to file a late response to the first amended complaint and to dismiss it pursuant to C.P.L.R. 3211(a)(1), (7), and (8), based on documentary evidence, failure to state a claim, and lack of jurisdiction. Plaintiff and Goutal stipulated to withdrawal of her motion and his cross-motion based on a lack of jurisdiction and to consider Goutal's cross-motion timely and apply the remainder of the cross-motion against the proposed second amended complaint.
III. PLAINTIFF'S MOTION TO JOIN THE BOARD AND AMEND HER COMPLAINT
Plaintiff seeks to join the Board of Directors of 117 East 72nd Street Corp. as a defendant in her first claim for breach of a fiduciary duty, add allegations to support the claim against the new defendant, and correct typographical errors. C.P.L.R. §§ 1002(b), 3025(b). No party opposes joinder of the Board of Directors, but the cooperative defendants and architect defendants oppose the amendments as futile because they fail to cure the grounds for dismissal in their motions. Both sets of defendants ask to apply their motions to the second amended complaint in the event the court permits the joinder and amendment. In the interest of efficiency, and as the court may permit amendment unless it is "palpably insufficient or clearly devoid of merit," WDF, Inc. v. Trustees of Columbia Univ., 170 A.D.3d 518, 519 (1st Dep't 2019), the court grants the joinder and amendment and applies defendants' motions and the cross-motion to the second amended complaint. C.P.L.R. §§ 1002(b), 3025(b); Kim v. White & Case LLP, 216 A.D.3d 408, 409 (1st Dep't 2023).
IV. STANDARDS APPLICABLE TO DEFENDANTS' MOTIONS
A motion to dismiss based on documentary evidence pursuant to C.P.L.R. § 3211(a)(1) will succeed only if admissible documentary evidence completely refutes plaintiff's factual allegations, resolving all factual issues as a matter of law. Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d 169, 175 (2021); Nomura Home Equity Loan, Inc., Series 2006-FM2 v. Nomura Credit & Capital, Inc., 30 N.Y.3d 572, 601 (2017); Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 (2002); VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 A.D.3d 189, 193 (1st Dep't 2019). In a motion to dismiss a claim pursuant to C.P.L.R. § 3211(a)(5), based on expiration of the applicable statute of limitations, defendants bear the initial burden to establish, prima facie, when plaintiff's claim accrued and that the time to sue has expired. MTGLQ Invs., LP v. Wozencraft, 172 A.D.3d 644, 644-45 (1st Dep't 2019); Norddeutsche Landesbank Girozentrale v. Tilton, 149 A.D.3d 152, 158 (1st Dep't 2017); Lebedev v. Blavatnik, 144 A.D.3d 24, 28 (1st Dep't 2016). The burden then shifts to plaintiff to raise an issue whether the claim is timely or the statute of limitations is tolled or otherwise inapplicable. MTGLQ Invs., LP v. Wozencraft, 172 A.D.3d at 644-45; Norddeutsche Landesbank Girozentrale v. Tilton, 149 A.D.3d at 158.
Upon a motion to dismiss the complaint based on its failure to state a claim pursuant to C.P.L.R. § 3211(a)(7), the court accepts plaintiff's allegations as true, liberally construes them, and draws all reasonable inferences in her favor. Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d at 175; Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 (2017); JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 N.Y.3d 759, 764 (2015); Miglino v. Bally Total Fitness of Greater NY, Inc., 20 N.Y.3d 342, 351 (2013). Defendants bear the burden to establish that the complaint "fails to state a viable cause of action." Connolly v. Long Island Power Auth., 30 N.Y.3d 719, 728 (2018). Dismissal is warranted only if the complaint fails to allege facts that fit within any cognizable legal theory. Sassi v. Mobile Life Support Servs., Inc., 37 N.Y.3d 236, 239 (2021); Faison v. Lewis, 25 N.Y.3d 220, 224 (2015); ABN AMRO Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 227 (2011); Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595 (2008).
V. THE COOPERATIVE DEFENDANTS' MOTION
A. First Claim - Breach of Fiduciary Duty Against the Individual Board Members and Officers
The breach of fiduciary duty claim against the individual members of the cooperative's Board of Directors and Pincus, an officer of the board, fails because individual board members and officers are not personally liable for a board's breach of its fiduciary duty. Tahari v. 860 Fifth Ave. Corp., 214 A.D.3d 491, 492 (1st Dep't 2023); Jarmuth v. Leonard, 187 A.D.3d 407, 407 (1st Dep't 2020). Although individual board members may be liable because "participation of an individual director in a corporation's tort is sufficient to give rise to individual liability--even absent any tort independent of the tort committed by the corporation itself," Board of Mgrs. of the Alfred Condominium v. Miller, 202 A.D.3d 467, 468 (1st Dep't 2022), the cooperative corporation did not commit the breach of fiduciary duty alleged here. The cooperative, in contrast to the Board of Directors, did not owe a fiduciary duty. Hersh v. One Fifth Ave. Apt. Corp., 163 A.D.3d 500, 501 (1st Dep't 2018).
The individual board members and officer may be sued individually for tortious acts performed independently of their role as board members, but plaintiff alleges no individual wrongdoing by any of the named board members or officers. Tahari v. 860 Fifth Ave. Corp., 214 A.D.3d at 492; Jarmuth v. Leonard, 187 A.D.3d at 407; Frankel v. Bd. of Managers of 392 Cent. Park W. Condo., 177 A.D.3d 465, 466 (1st Dep't 2019). The second amended complaint does not even mention their names except in identifying the members and officers of the board. The claim stands against the board, which has not yet appeared.
B. Third Claim - Fraudulent Concealment Against the Cooperative
To sustain plaintiff's fraud claim against the cooperative, plaintiff must allege a material misrepresentation or omission, intended to induce her to rely on it, her justifiable reliance, and her injury. Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011). Fraud must be pleaded with particularity. C.P.L.R. § 3016(b). Fraudulent concealment also requires an allegation that the cooperative owed a duty to disclose the material information to plaintiff or possessed special knowledge, such that the information allegedly withheld was peculiarly within the cooperative's knowledge and plaintiff could not have found it out by exercising ordinary intelligence. ACA Fin. Guar. Corp. v. Goldman, Sachs & Co., 25 N.Y.3d 1043, 1044 (2015); Gansett One, LLC v. Husch Blackwell, LLP, 168 A.D.3d 579, 579 (1st Dep't 2019); MP Cool Invs. Ltd. v. Forkosh, 142 A.D.3d 286, 291 (1st Dep't 2016).
Plaintiff claims fraudulent concealment against the cooperative for its failure to notify her that it adopted a new policy to allow only residential use of the first floor and that the cooperative, along with Goutal and the architect defendants, sought an amendment of the CO to that effect. This claim fails because she does not allege that she took any actions or failed to act based on the absence of that notice or that the withholding of information injured her. While plaintiff alleges an injury from the policy change and the new CO, she does not allege an injury from the lack of information. While she also alleges she would have taken action to block Goutal's renovation project, had she known about the planned amendment of the CO, her allegations are vague and conclusory. Malley Ex. B (Proposed Second Amended Complaint) ¶ 131. She alleges no specific actions she might have taken to block the renovation or the amendment of the CO. Even were she to allege that she might have sought an injunction against the renovation or the amendment of the CO, such action would have been unsuccessful, as explained below.
C. Fourth Claim - Breach of the Covenant of Good Faith and Fair Dealing Against the Cooperative
All contracts imply a covenant of good faith and fair dealing in their performance, such that neither party may detract from the counterparty's ability to receive the benefits of the parties' agreement. Singh v. City of New York, __ N.Y.3d __, 2023 WL 3098734, at *2 (Apr. 27, 2023). Plaintiff claims the cooperative breached the covenant implied in the parties' proprietary lease for her premises.
The cooperative maintains that the claim fails based on contradictory documentary evidence, C.P.L.R. § 3211(a)(1), as the proprietary lease provides that plaintiff's premises are a "private dwelling apartment" that may be used as a medical office only if the practitioner also lives in the apartment, and neither plaintiff nor her husband lived there. Aff. of Michael Basile Ex. J, Doc. No. 25, art. 2 ¶ 5. Plaintiff alleges, however, that the parties' course of conduct modified the proprietary lease. Since the cooperative was aware that plaintiff's husband had used the premises as a medical office since 1965 and that prior tenants had used the premises as a medical office since 1928, the cooperative lifted the restriction despite the proprietary lease's requirement that a waiver of the lease's terms be in writing.
Such a waiver may be valid, regardless of the lease's provisions. The cooperative does not claim that, over the course of plaintiff's or her husband's tenancy since 1965, the cooperative refused their maintenance payments or sought to terminate their proprietary lease because their premises were being used as a medical office and not as a residential apartment. In fact the cooperative permitted plaintiff's husband to acquire the second suite, SR1C, in 1977 and to transfer both suites to plaintiff in 1985 without any repercussions regarding the premises' use. This conduct, over several decades, waived enforcement of the proprietary lease against use as a medical office, despite the nonwaiver provision, because it, too, may be waived. TSS-Seedman's Inc. v. Elota Realty Co., 72 N.Y.2d 124, 1027 (1988); Todd English Enters. LLC v. Hudson Home Group, LLC, 206 A.D.3d 585, 587 (1st Dep't 2022); Paramount Leasehold, L.P. v. 43rd St. Deli, Inc., 136 A.D.3d 536, 568 (1st Dep't 2016); Madison Ave. Leasehold, LLC v. Madison Bentley Assoc. LLC, 30 A.D.3d 1, 6-7 (1st Dep't), aff'd, 8 N.Y.3d 59 (2006). See Atkin's Waste Materials v. May, 34 N.Y.2d 422, 427 (1974). Even had the cooperative suddenly changed course and refused plaintiff's maintenance payments or sought to terminate her proprietary lease because her premises were being used as a medical office and not as a residential apartment, the cooperative's waiver would be a factual question. Jefpaul Garage Corp. v. Presbyterian Hosp., 61 N.Y.2d 442, 448-49 (1984); Todd English Enters. LLC v. Hudson Home Group, LLC, 206 A.D.3d at 587; Parlux Fragrances, LLC v. S. Carter Enters., LLC, 204 A.D.3d 72, 87 (1st Dep't 2022); Madison Ave. Leasehold, LLC v. Madison Bentley Assoc. LLC, 30 A.D.3d at 6, aff'd, 8 N.Y.3d 59.
Moreover, regardless of a waiver, the proprietary lease allows use of plaintiff's premises as a professional office if the tenant also lives there. Basile Aff. Ex. J, art. 2 ¶ 5. The change in the CO, which required the cooperative's approval, prohibited that use, eliminating that option, and thus detracting from plaintiff's ability to receive the benefits of the parties' agreement. Singh v. City of New York, __ N.Y.3d __, 2023 WL 3098734, at *2. The cooperative's failure when it approved, through its property manager, Goutal's application to change the CO, without accounting for the impact of the change on another shareholder, raises a question whether the cooperative dealt with plaintiff fairly and in good faith. For this reason, as well as the factual question as to a waiver, this claim survives.
D. Fifth Claim - Promissory Estoppel Against the Cooperative
Plaintiff's claim of promissory estoppel against the cooperative fails because there is a valid and enforceable contract between plaintiff and the cooperative. While the parties dispute the meaning of the proprietary lease's terms, they agree that the proprietary lease governs their interactions, barring plaintiff's promissory estoppel claim. Pope Contracting, Inc. v. New York City Hous. Auth., 214 A.D.3d 519, 521 (1st Dep't 2023); ID Beauty S.A.S. v. Coty Inc., 164 A.D.3d 1186, 1186 (1st Dep't 2018).
E. Eighth Claim - Permanent Injunction Against the Cooperative
The cooperative seeks to dismiss plaintiff's claim for an injunction because it is not an independent claim, but a remedy if plaintiff succeeds on one or more of her claims. The cooperative insists that, because all supporting claims fail, this remedy is unavailable to plaintiff. The cooperative also maintains that injunctive relief is unavailable because plaintiff retains an adequate remedy at law. Although plaintiff's first amended complaint sought an injunction against Goutal and the architect defendants as well, her second amended complaint omits this relief against them.
Plaintiff urges that her claims relate to real property, and that injunctive relief or specific performance is a remedy when a party seeks to preserve unique real property. Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201, 207 (1989); Judnick Realty Corp. v. 32 W. 32nd St. Corp., 61 N.Y.2d 819, 823 (1984). Plaintiff, however, does not show irreparable damage from being disallowed use of her suite as a professional office. Kazantzis v. Cascade Funding RM1 Acquisitions Grantor Trust, 217 A.D.3d 410, 412 (1st Dep't 2023); Harris v. Patients Med., P.C., 169 A.D.3d 433, 434 (1st Dep't 2019); Broadway 500 W. Monroe Mezz II LLC v. Transwestern Mezzanine Realty Partners II, LLC, 80 A.D.3d 483, 484 (1st Dep't 2011). She does not intend to use her premises as a professional office. If she sells her premises for less due to the amended CO's use restrictions, she will incur ascertainable, compensable damages. Kazantzis v. Cascade Funding RM1 Acquisitions Grantor Trust, 217 A.D.3d at 412; Harris v. Patients Med., P.C., 169 A.D.3d at 434; Broadway 500 W. Monroe Mezz II LLC v. Transwestern Mezzanine Realty Partners II, LLC, 80 A.D.3d at 484. Plaintiff thus retains an adequate remedy at law that defeats her claim for injunctive relief.
G. Ninth Claim - Attorneys' Fees Against the Cooperative
Plaintiff seeks her attorneys' fees and expenses pursuant to Article 2, ¶ 13, of her proprietary lease, Basile Aff. Ex. J, which entitles the cooperative to attorneys' fees and expenses incurred for a breach of the lease, and RPL § 234, which makes that right reciprocal. Although RPL § 234 applies only to residential dwellings, as the cooperative emphasizes, plaintiff's proprietary lease provides that her premises are residential.
The cooperative nevertheless maintains that plaintiff's claim for attorneys' fees and expenses fails absent an alleged breach by the cooperative, but plaintiff's claim for breach of the duty of good faith and fair dealing implied in the proprietary lease survives. As the covenant is an implied term and part of the lease, Parkmerced Inv., LLC v. WeWork Cos. LLC, 217 A.D.3d 531, 532 (1st Dep't 2023); Cherry Operating LLC v. CPS Fee Co. LLC, 216 A.D.3d 544, 545 (1st Dep't 2023), her claim for attorneys' fees and expenses, at least to the extent incurred in prosecuting of the breach of the covenant, also survives.
VI. THE ARCHITECT DEFENDANTS' MOTION AND GOUTAL'S CROSS-MOTION
Plaintiff alleges that the architect defendants worked on Goutal's renovation of his suite on the first floor and participated in procuring the new CO. She claims fraudulent concealment of his plans for the suite and the changes to the CO and negligent misrepresentation related to the new, allegedly inaccurate CO. The architect defendants and Goutal move to dismiss plaintiff's claims against them pursuant to C.P.L.R. § 3211(a)(1), (5), and (7), based on documentary evidence, untimeliness, and failure to state a claim, defenses that the court applies to plaintiff's second amended complaint.
A. Sixth Claim - Fraudulent Concealment Against Goutal and the Architect Defendants
The architect defendants maintain that the statute of limitations of three years for malpractice by architects and design professionals, C.P.L.R. § 214(6), bars plaintiff's fraudulent concealment claim against them. That statute of limitations starts to run when the architect defendants completed their work. City of New York v. George G. Sharp, Inc., 178 A.D.3d 490, 491 (1st Dep't 2019); New York City Sch. Constr. Auth. v. Ennead Architects, LLP, 148 A.D.3d 618, 618 (1st Dep't 2017).
Plaintiff's fraudulent concealment claim, however, is not a malpractice claim. Plaintiff does not allege that the architect defendants performed their professional architectural or design work negligently. Therefore C.P.L.R. § 214(6) does not apply. Instead, the statute of limitations of six years for fraud claims applies, rendering this claim timely. C.P.L.R. § 213(8).
Nevertheless, this claim fails because plaintiff does not allege facts supporting the elements of the claim. She does not allege a special relationship with the architect defendants or Goutal that would impose a duty on them to disclose information to her. Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at 179; Pope Invs. II LLC v. Belmont Partners, LLC, 214 A.D.3d 484, 485 (1st Dep't 2023); Pruss v. AmTrust N. Am. Inc., 204 A.D.3d 620, 620 (1st Dep't 2022). These defendants were not parties to a transaction with plaintiff as required to support a special relationship. In fact, plaintiff alleges no relationship whatsoever between her and these defendants. She alleges a transaction by them with the cooperative and with DOB that impacted her, but the requisite transaction must be directly with her. Balanced Return Fund Ltd. v. Royal Bank of Can., 138 A.D.3d 542, 542-43 (1st Dep't 2016).
An obligation to disclose information may arise even though there was no special relationship between these defendants who allegedly possessed undisclosed information and plaintiff, the injured party, if the information was peculiarly within these defendants' knowledge and inaccessible to plaintiff. Williams v. Sidley Austin Brown & Wood, L.L.P., 38 A.D.3d 219, 220 (1st Dep't 2007). Even if the architect defendants or Goutal possessed superior knowledge, however, plaintiff's failure to make any inquiries is fatal to her claim, because her failure to inquire negates her reasonable reliance on these defendants' omission, an essential element of a fraudulent concealment claim. Lantau Holdings Ltd. v. Orient Equal Int'l Grp. Ltd., 161 A.D.3d 714, 714-15 (1st Dep't 2018). Plaintiff does not allege, for example, that, even after Goutal's renovations began, she looked at DOB's website to review public filings, conducted any investigation, or even asked anyone involved any questions.
B. Seventh Claim - Negligent Misrepresentation Against Goutal and the Architect Defendants
Plaintiff claims negligent misrepresentation against Goutal and the architect defendants for the same conduct that she alleges to support their fraudulent concealment. Because her claim is based on fraudulent conduct, the statute of limitations of six years for fraud claims also applies to this claim, rendering it, too, timely. C.P.L.R. § 213(8); Demian v. Calmenson, 156 A.D.3d 422, 423 (1st Dep't 2017); 14 Bruckner LLC v. 14 Bruckner Blvd. Realty Corp., 78 A.D.3d 431, 431 (1st Dep't 2010).
Again, however, this claim fails because plaintiff does not allege facts supporting the elements of her claim. To sustain her negligent misrepresentation claim, she must allege that she shared a special relationship, like privity, with Goutal and the architect defendants, imposing a duty on them to provide accurate information to her; that defendants provided inaccurate information to her; and that she reasonably relied on the information. Pope Invs. II LLC v. Belmont Partners, LLC, 214 A.D.3d at 485; Pruss v. AmTrust N. Am. Inc., 204 A.D.3d at 620. She alleges none of these elements.
Again, plaintiff alleges no relationship between her and these defendants. She alleges an omission, but not that the architect defendants or Goutal owed any duty, fiduciary or otherwise, to disclose the omitted information. Like plaintiff's fraudulent concealment claim, her negligent misrepresentation fails due to the absence of a relationship from which a duty to disclose accurate information arose. Pentagon Fed. Credit Union v. Popovic, 217 A.D.3d 480, 482 (1st Dep't 2023). This claim likewise fails because she nowhere shows any inquiry seeking any information, thus justifying her reasonable reliance on inaccurate or omitted information.
C. Second Claim - Aiding and Abetting Breach of Fiduciary Duty Against Goutal
Although the court dismisses plaintiff's breach of fiduciary duty claim against the individual members of the Board of Directors, plaintiff also claims breach of a fiduciary duty against the board, which has not yet appeared nor moved to dismiss the claims against it. Therefore, while any claim against Goutal for aiding and abetting the individual board members must fail, Fifth & Fifty-Fifth Residence Club Assn., Inc. v. Vistana Signature Experiences, Inc., 217 A.D.3d 564, 565-66 (1st Dep't 2023), dismissal of plaintiff's claim for aiding and abetting the board's breach of a fiduciary duty based on the absence of a predicate breach is premature.
VII. CONCLUSION
For the reasons explained above, the court grants plaintiff's motion to join a defendant and to file and serve her second amended complaint. C.P.L.R. §§ 1002(b), 3025(b). The court grants the motion by defendants Form Architecture, Formarch Interiors Inc., and Webb to dismiss all claims against these defendants. C.P.L.R. § 3211(a)(7). The court grants defendant Goutal's cross-motion to dismiss the claims against Goutal except plaintiff's second claim, for aiding and abetting breach of a fiduciary duty. Id. The court grants defendant 117 East 72nd Street Corp.'s motion to dismiss the claims against the cooperative corporation except plaintiff's fourth claim, for breach of the implied covenant of good faith and fair dealing, and ninth claim, for attorneys' fees and expenses. C.P.L.R. § 3211(a)(1) and (7). The court grants the motion by defendants Stearne, Acuavella, Ayres, Laskaway, Lessing, Abdel-Meguid, and Pincus to dismiss plaintiff's fourth claim, the only claim, against them. C.P.L.R. § 3211(a)(7).
The court denies plaintiff's request to replead, without prejudice to a motion to amend the second amended complaint accompanied by a proposed third amended complaint. Within 10 days after entry of this order, plaintiff shall serve her second amended complaint on the joined defendant, the Board of Directors of 117 East 72nd Street Corp., and the remaining defendants shall file answers to the remaining claims in the second amended complaint. C.P.L.R. § 3211(f). Plaintiff, the Board of Directors, and the remaining defendants shall appear for a Preliminary Conference by video October 24, 2023, at 10:00 a.m.