International Plaza Associates, L.P. v. Michael Lacher
(Supreme Court, NY County, 4/14/08)
We represented: Plaintiff International Plaza Associates, L.P.
Justice Debra A. James, J.S.C.
DECISION and ORDER
The court shall grant plaintiff's motion to dismiss the counterclaims, third party action and defendant's sixth affirmative defense.
This court concurs with plaintiff that the allegations of the third party complaint are insufficient to state a claim to pierce the corporate veil with respect to defendants Cohen and Nevins. Nor does the claim of fraud contain the essential element of reasonable reliance in the face of written lease that contains an provision requiring any modification to be in writing signed by the landlord. Aris Industries, Inc. v 1411 Trizechahn-Swig, LLC, 294 AD2d 107 (1st Dept 2002).
Plaintiff is also correct that the claim of fraudulent inducement is insufficient as it merely states a claim for breach of contract. So too, the court concurs with plaintiff that punitive damages are improperly pled in defendant's counterclaim and third party action. Rocanova v Equitable Life Assurance, 83 NY2d 603 (1994).
The court denies plaintiff's motion as to the dismissal of defendants' affirmative defenses, except as to the sixth affirmative defense of breach of warranty of habitability, as such defense in an action on a commercial lease is totally lacking in merit. Bomze v Jaybee Photo Suppliers, Inc., 117 Misc. 2d 957 (App Term 1st Dept 1983).
Accordingly, it is
ORDERED that the plaintiff's motion to dismiss the third party complaint against Nevins and Cohen and to dismiss the second counterclaims against International Plaza Associates, and to strike defendants' punitive damages claims and defendants' sixth affirmative defense is GRANTED, and plaintiff's motion with respect to Defendants' first, third, and fifth affirmative defenses is denied; and it is further
ORDERED that plaintiff shall have ten days from service of a copy of this Order with notice of entry to serve a Reply to the second counterclaim; and it is further
ORDERED that the parties shall appear for a Status Conference at IAS Part 59, 111 Centre Street, Room 1254 on May 20, 2008, 2:30 PM.
This is the decision and order of the court.
Dated: April 14, 2008