Upon the foregoing papers, it is ordered that the motion is determined as follows:

Plaintiff is the owner of twelve cooperative apartment units in three buildings owned by defendant, which are located at 1 Station Square, 10 Station Square, and 2 Dartmouth Street in Forest Hills, New York. It is undisputed that plaintiff and his wife reside in two units in the building located at 1 Station Square. It is alleged that, beginning in 2003, defendant failed to maintain the condition of the buildings. On January 22, 2009, plaintiff commenced the within action against defendant, alleging, inter alia, that : [*2]

(a) defendant breached the warranty of habitability under Real Property Law section 235-b, that the value of plaintiff's apartment units diminished as a result of defendant's negligent maintenance of the buildings,

(b) defendant created a nuisance pursuant to Real Property Actions and Proceedings Law section 841 by erecting scaffolding and netting on the exterior of the apartment units owned by plaintiff, and

(c) certain defamatory and libelous statements regarding plaintiff were made by a member of defendant's board of directors.

On January 27, 2009, plaintiff served an amended complaint, and defendant subsequently moved to dismiss the amended complaint pursuant to CPLR 3211(a)(7) and to provide a more definite statement in accordance with CPLR 3024. By an order of this Court dated August 12, 2009, defendant's motion to dismiss was granted with leave to replead plaintiff's claims. On September 14, 2009, plaintiff served a second amended complaint.

Initially, the Court notes that defendant improperly denominated the branches of its motion to dismiss plaintiff's second, third, and fourth causes of action on grounds of untimeliness as a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7). However, the Court, in its discretion, will treat those branches of defendant's motion to dismiss the second, third, and fourth causes of action for untimeliness pursuant to CPLR 3211(a)(5) inasmuch as all parties addressed the statute of limitations issues in their submissions and no party was prejudiced thereby (see, Schrank v Lederman, 52 AD3d 494, 495 [2d Dept. 2008]).

The Court first turns to the branch of defendant's motion to dismiss the second cause of action for breach of the warranty of habitability under Real Property Law section 235-b due to defendant's alleged failure to repair, inter alia, water leaks during the period of 2003 through 2009, thereby causing a partial constructive eviction of plaintiff. Pursuant to Real Property Law section 235-b, every residential lease contains an implied warranty of habitability which provides that,

the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.

Here, it is defendant's primary contention that plaintiff commenced the within action on January 22, 2009 and, thus, plaintiff's claims of breach of the warranty of habitability which arose prior to January 22, 2006 are barred by the statute of limitations under CPLR 214(2). Specifically, CPLR 214(2) prescribes a three-year statute of limitations for actions "to recover on a liability, penalty or forfeiture created or imposed by statute except as provided in CPLR 213 and CPLR 215" (emphasis added). However, contrary to defendant's assertion, plaintiff's claim [*3]for breach of the warranty of habitability is governed by the six-year statute of limitations imposed by CPLR 213(2), which refers to actions "upon a contractual obligation or liability, express or implied . . . " (see, Witherbee Ct. Assoc. v Greene, 7 AD3d 699, 700-701 [2d Dept. 2004]; Sprague v Luna Park Co-op, 83 AD2d 877, 878 [2d Dept. 1981]).

Defendant's liability as alleged in the complaint has its genesis in the contractual relationship between the parties, and the events giving rise to the cause of action for breach of the warranty of habitability directly implicated that relationship. Moreover, the warranty of habitability provisions under Real Property Law § 235-b permit recovery of only economic loss and are not intended to provide a basis to recover damages for personal injuries, which are recoverable in a negligence action (see, Stone v Gordon, 211 AD2d 881 [3d Dept.1995]; Carpenter v Smith, 191 AD2d 1036 [4th Dept. 1993]). Indeed, plaintiff herein seeks to recover damages for economic loss, not damages for personal injuries. Therefore, since the applicable statute of limitations is six years, plaintiff's cause of action for breach of the warranty of habitability for the period of 2003 through 2009 is not time-barred.

Furthermore, since the plain language of Real Property Law section 235-b indicates that the warranty of habitability extends to units actually occupied by a tenant (see generally, Halkedis v Two E. End Ave. Apt. Corp., 161 AD2d 281 [1st Dept.], appeal denied, 76 NY2d 711 [1990]), plaintiff may avail himself of the protection of the statutory implied warranty of habitability with respect to the apartment units he personally occupies, namely apartment numbers 801 and 802 located at 1 Station Square. In addition, plaintiff does not dispute that the second cause of action for breach of the implied warranty of habitability concerns only the aforementioned units in which he resides with his wife.

The Court rejects defendant's additional contention that plaintiff's claims based on breach of the implied warranty of habitability under Real Property Law § 235-b are precluded by the business judgment rule. The business judgment rule prohibits judicial inquiry into the actions of the board of a cooperative corporation as long as the board acts for the purposes of the cooperative, within the scope of its authority, and in good faith (see, Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537-538 [1990]). It is well-established that the business judgment rule does not protect a cooperative board from liability for its own breach of contract (see, Anderson v Nottingham Vil. Homeowner's Assn., Inc., 37 AD3d 1195, 1197 [4th Dept. 2007]; Whalen v 50 Sutton Place S. Owners, 276 AD2d 356, 357 [1st Dept. 2000]). In this case, the business judgment rule does not shield defendant from liability for its alleged breach of the implied warranty of habitability because, as previously discussed, plaintiff's second cause of action is based on his contractual relationship with defendant as a proprietary lessee, his rights, contractual and otherwise, as derived from that relationship, and defendant's alleged violation of those rights (see e.g. Anderson, 37 AD3d at 1197; Whalen, 276 AD2d at 357; Dundy v Hanover River House, Inc., 2008 WL 5197030, 2008 NY Slip Op 33227 [Sup Ct New York County 2008]).

Similarly, defendant contends that plaintiff's third cause of action to recover damages for [*4]the diminution in value of the apartment units owned by plaintiff as a result of defendant's alleged negligent maintenance of the cooperative apartment buildings should be dismissed as it is barred by the three-year statute of limitations under CPLR 214(2). When, as here, a cause of action is "one for damages to property or pecuniary interests only, where there is a contractual agreement between the parties, the general tendency has been to allow the plaintiff to elect to sue in contract or tort, as he [or she] sees fit" (see Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669, 675 [1976]). Here, plaintiff's third cause of action is for breach of provisions in the parties' lease obligating defendant to maintain the premises in good repair, which breach allegedly caused a substantial diminution in value of the apartment units at issue. Although the complaint alleges that defendant was negligent in maintaining the condition of the premises, plaintiff's claim is substantially related to the subject matter of the substantive agreement between the parties. Therefore, the six-year statute of limitations for breach of contract actions applies and plaintiff's third cause of action is timely (CPLR 213[2]; see, e.g., Gross v 420 E. 72nd St. Tenants Corp., 21 Misc 3d 629, 631-634 [Sup Ct New York County 2008]).

Next, the Court will address the branch of defendant's motion to dismiss the fourth cause of action to recover damages for nuisance pursuant to Real Property Actions and Proceedings Law section 841 as barred by the three-year statute of limitations under CPLR 214(2). In the complaint, plaintiff alleges that defendant created a nuisance by installing, in 2005, scaffolding and netting on the exterior of the building in which plaintiff resides, which currently remains in place, causing an infestation of wildlife outside the apartments owned by plaintiff and blocking light and air from entering into the apartment units which plaintiff occupies. In support of its motion to dismiss, defendant maintains that, since the scaffolding and netting was installed in 2005, the applicable three-year statute of limitations expired prior to the commencement of the action on January 22, 2009. However, in light of the continuing nature of the condition upon which plaintiff's nuisance claim is based, namely, the continued presence of the scaffolding and netting, the wrong is continuous or recurring and gives rise to successive causes of action under the continuous wrong doctrine (see, Lucchesi v Perfetto, 72 AD3d 909 [2d Dept 2010]; State of New York v CSRI Ltd. Partnership, 289 AD2d 394, 395 [2001], lv. to appeal dismissed, 97 NY2d 749 [2002]; Sova v Glasier, 192 AD2d 1069, 1070 [1993]). Additionally, even where the nuisance is properly characterized as continuing, damages are recoverable only to the extent that they were sustained during the three years immediately preceding commencement of the action (id.). Consequently, plaintiff's nuisance cause of action is not time-barred, but damages would be recoverable only to the extent that they were incurred within three years prior to commencement of the within action.

Turning to the branch of defendant's motion to dismiss plaintiff's sixth cause of action sounding in libel and defamation pursuant to CPLR 3211(a)(7), defendant primarily contends that the complaint failed to comply with the pleading requirements set forth in CPLR 3016(a). On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any [*5]cognizable legal theory" (see, Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]). A cause of action for libel or defamation which fails to comply with the special pleading requirements contained in CPLR 3016(a) that the complaint set forth "the particular words complained of" mandates dismissal (see, Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497 [2d Dept. 2004]; Varela v Investors Ins. Holding Corp., 185 AD2d 309 [2d Dept. 1992]).

This requirement that the defamatory words must be quoted verbatim is strictly enforced (see, Abe's Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690, 693 [2d Dept. 2007]; Erlitz v Segal, Liling & Erlitz, 142 AD2d 710, 712 [2d Dept.1988]). Here, the complaint merely paraphrased the allegedly defamatory statements, notwithstanding the quotation marks around the words "deliberately," "all shareholders," and "concerned members of the board," in a manner such that the actual words were not evident from the face of the complaint and, thus, the defamatory words were never pleaded with particularity (see, e.g., Mañas v VMS Assoc., LLC, 53 AD3d 451 [1st Dept. 2008]; American Preferred Prescription v Health Mgt., 252 AD2d 414, 420 [1st Dept. 1998]).

Furthermore, the alleged defamatory statements in this case were subject to a qualified privilege. A qualified privilege extends to a communication made by one person to another about a subject in which both have an interest (see, Liberman v Gelstein, 80 NY2d 429, 437 [1992]; Hyer v Southside Hosp., 227 AD2d 592 [2d Dept. 1996]). To overcome a defense of a qualified privilege, the plaintiff must make an evidentiary showing that the statements were published with malice (see, Liberman v Gelstein, 80 NY2d at 437-438; Hyer v Southside Hosp., 227 AD2d at 592).

In the complaint, plaintiff alleged that Martin Levinson, a shareholder and member of the cooperative's board of directors, made defamatory statements regarding plaintiff, who is also a shareholder and member of the board of directors. The statements, which concerned acts of nuisance, criminal conduct, and a conflict of interest on the part of plaintiff, were directed to all the shareholders and the board of directors. Given that Martin Levinson, the shareholders, and the board of directors shared a common interest in protecting the rights of the cooperative association and the shareholders, these statements were subject to a qualified privilege (see, e.g., Red Cap Valet v Hotel Nikko [USA], 273 AD2d 289, 290 [2d Dept. 2000]). In addition, plaintiff failed to allege any facts from which malice could be inferred and the conclusory allegations of malice were insufficient to overcome the privilege (see, e.g., Red Cap Valet, Ltd. v. Hotel Nikko (USA), Inc., 273 AD2d 289, 290 [2d Dept. 2000]); Trachtman v Empire Blue Cross & Blue Shield, 251 AD2d 322, 323 [2d Dept. 1998]).

Accordingly, the branches of defendant's motion to dismiss the second cause of action for breach of the warranty of habitability under Real Property Law section 235-b, the third cause of action to recover damages for the diminution in value of the apartment units owned by plaintiff due to defendant's alleged negligent maintenance of the buildings, and the fourth cause of action alleging that defendant created a nuisance pursuant to Real Property Actions and [*6]Proceedings Law section 841 are denied. However, the branch of defendant's motion to dismiss plaintiff's sixth cause of action sounding in libel and defamation is granted.

Dated: June 21, 2010

J.S.C.

Appearances of Counsel:

For the Plaintiff: Paul B. Dalkony, Esq., 45 East 7th Street [suite 103], New York, New York 11103

For the Defendant: Hankin & Mazel, PLLC, by Mark L. Hankin and Pamela Gallagher, Esqs., 7 Penn Plaza [suite 904], New York, New York 10001