Opinion
9986 Index 650142/15
10-03-2019
SEARS HOLDINGS MANAGEMENT CORP., etc., Plaintiff–Respondent, v. ROCKAWAY REALTY ASSOCIATES, LP, et al., Defendants–Appellants.
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., New York (Sydney A. Fetten of counsel), for appellants. Bruckmann & Victory, LLP, New York (Richard J. Sprock of counsel), for respondent.
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., New York (Sydney A. Fetten of counsel), for appellants.
Bruckmann & Victory, LLP, New York (Richard J. Sprock of counsel), for respondent.
Acosta, P.J., Renwick, Manzanet–Daniels, Singh, JJ.
Order, Supreme Court, New York County (Carmen Victoria St. George, J.), entered October 30, 2018, which granted plaintiff's motion for partial summary judgment as to liability for the third (breach of contract) and fourth (quantum meruit/unjust enrichment) causes of action, unanimously modified, on the law, to deny the motion as to the fourth cause of action, and to dismiss that cause of action, and otherwise affirmed, with costs, to be paid by defendants.
Plaintiff met its burden on its motion for summary judgment for breach of contract by submitting admissible evidence, including the emails from Mr. Poyker, an employee of one of the defendants, that defendants' refused to repair the interior of plaintiff's store, which constituted a breach of the parties' agreement. As defendants submitted no relevant admissible evidence in opposition to the motion, we affirm the grant of summary judgment for breach of contract in plaintiff's favor ( Zuckerman v. City of New York , 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
However, the fourth cause of action requires dismissal because it constitutes an indistinguishable dispute regarding the same operative facts as the claim for breach of contract ( Goldstein v. CIBC World Mkts. Corp. , 6 A.D.3d 295, 296, 776 N.Y.S.2d 12 [1st Dept. 2004] ; see also Board of Mgrs. of Honto 88 Condominium v. Red Apple Child Dev. Ctr., a Chinese Sch. , 160 A.D.3d 580, 581–582, 76 N.Y.S.3d 136 [1st Dept. 2018] ).
We have considered defendants' remaining arguments and find them unavailing.