Opinion
2012-11-27
VBH LUXURY, INCORPORATED, Plaintiff–Appellant, v. 940 MADISON ASSOCIATES, LLC, Defendant–Respondent. [And a Third–Party Action].
Phillips Nizer LLP, New York (Bruce J. Turkle of counsel), for appellant. Baker & Hostetler, LLP, New York (Dennis O. Cohen of counsel), for respondent.
Phillips Nizer LLP, New York (Bruce J. Turkle of counsel), for appellant. Baker & Hostetler, LLP, New York (Dennis O. Cohen of counsel), for respondent.
TOM, J.P., SAXE, RICHTER, ABDUS–SALAAM, FEINMAN, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered December 16, 2011, which, to the extent appealed from, denied plaintiff's motion for partial summary judgment as to liability, dismissing the affirmative defense of waiver, and declaring it the prevailing party under the lease, and granted defendant's cross motion for summary judgment dismissing the claims for consequential damages and lost profits and the cause of action for breach of the implied covenant of good faith and fair dealing, unanimously affirmed, without costs.
The lease exculpates the landlord from liability for lost rental value, and the lost profits claim for the new venture was speculative ( see Digital Broadcast Corp. v. Ladenburg, Thalmann & Co., Inc., 63 A.D.3d 647, 647–648, 883 N.Y.S.2d 186 [1st Dept. 2009],lv. dismissed14 N.Y.3d 737, 898 N.Y.S.2d 75, 925 N.E.2d 75 [2010] ). Plaintiff failed to provide a basis for calculating lost profits with reasonable certainty based on known reliable factors ( see Ashland Mgt. v. Janien, 82 N.Y.2d 395, 403, 604 N.Y.S.2d 912, 624 N.E.2d 1007 [1993] ). There is no showing that plaintiff ever made a profit. The breach of the implied covenant of good faith cause of action is duplicative of the breach of contract cause of action ( see Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce, 70 A.D.3d 423, 426, 894 N.Y.S.2d 47 [1st Dept. 2010],lv. denied15 N.Y.3d 704, 907 N.Y.S.2d 752, 934 N.E.2d 321 [2010] ).
Issues of fact exist as to defendant's alleged refusal to sign a signage permit and failure to remove a Landmarks Commission violation. Defendant's liability for damage from leaky pipes is disclaimed in the lease; the disclaimer is not inconsistent with defendant's maintenance obligation, and does not render that obligation meaningless.
The motion court correctly denied, sub silentio, plaintiff's motion as to attorney's fees as the prevailing party under the lease. Plaintiff was not victorious and did not obtain relief ( see 542 E. 14th St. LLC v. Lee, 66 A.D.3d 18, 24–25, 883 N.Y.S.2d 188 [1st Dept. 2009] ).
We have considered plaintiff's other contentions and find them unavailing.