Upon the foregoing papers, it is ORDERED that defendants' motion to dismiss pursuant to CPLR Section 3211(a)(1) and (7) is granted.

By summons with notice dated January 19, 2005, plaintiff commercial tenant sought at least two million dollars in damages from Reva Holding Corp (Reva), for defendant commercial landlord's: i) breach of the warranty of quiet enjoyment, based on the lease entered March 29, 1994, ii) creation and maintenance of a nuisance; and iii) various tortious conduct. Plaintiff also sought an order abating rent, and enjoining defendant's construction activities which interfere with its quiet enjoyment. By complaint dated February 17, 2005, plaintiff asserted various causes of action against Reva and against defendant F & S Construction, Inc. (F & S), Reva's contractor. It asserted five causes of action as against Reva, in negligence, nuisance, trespass, breach of covenant of quiet enjoyment, and breach of contract; it asserted three causes of action against F & S, in negligence, nuisance, and trespass.

Defendants now move to dismiss the complaint, as the lease bars these claims and the complaint fails to state a cause of action. Plaintiff opposes, arguing that the lease does not bar its claims and the complaint does state a cause of action. Plaintiff also requests in its opposition that in the event the court dismisses the complaint, the court permit it leave to replead. [*2]

The motion is granted. Defendant correctly argue that the lease by its terms bars these claims against both the landlord and F & S (Articles 4 and 13, Article 47(J) ) and, additionally, that the claims for nuisance, breach of the covenant of quiet enjoyment, trespass, and negligence fail to state a cause of action. Plaintiff's arguments to the contrary are non-availing. In the exercise of its discretion, the court declines to consider plaintiff's request within its opposition papers for leave to replead, as plaintiff failed to cross-move or move for this request. Were the court to consider the request, leave is denied, as plaintiff has failed to submit a proposed amended complaint or to otherwise show that its complaint can be replead so as to survive the provisions of the lease and to state a valid cause of action.

Accordingly, it is

ORDERED that defendant's motion to dismiss is granted, and the Clerk is directed to enter judgment dismissing the complaint in favor of the defendants and against plaintiff, with costs and disbursements.

Dated: July 12, 2005

FAVIOLA A. SOTO, J.S.C.