In motion sequence 002, the defendants ZCAM LLC ("ZCAM") and Slavik Gofman ("Gofman") move pursuant to CPLR 3211(a)(1) and (7) to dismiss the Amended Complaint.

This action arises out of an alleged breach of a lease for commercial space located at 279 Church Street, New York, NY 10013 (the "Building").

PVF alleges that on March 5, 2012, PVF and ZCAM entered in to a ten-year lease agreement (the "Lease") for the ground floor and basement space located within the Building (the "Premises"). PVF intended to use the Premises for "the operation of a first-class, reputable and dignified wine bar/restaurant," named Mulino a Vino (the "Restaurant") (Complaint, ¶ 18).

Prior to the execution of the Lease, both parties agreed that renovations would be necessary because the Restaurant "required a certain interior, improvements, additions, changes, and alterations" (the "Work")(id. at ¶ 19).

PVF then retained the services of an architect, a contractor, a construction engineer, an expediter, and legal [*2]counsel to begin the Work so that the Restaurant could open in July of 2012.

However, when PVF filed for the permits required to begin the Work, it discovered that there were three outstanding New York City Landmark Preservation Commission (the "LPC") violations against the Building, that the previous Certificate of Occupancy (the "CO") had expired, and that the ground floor was not permitted to be used as an eating area for the Restaurant.

On May 11, 2012, PVF informed ZCAM by email of the violations and requested that ZCAM cure them immediately.

Eventually, on August 7, 2012, after multiple requests by PVF to cure the violations, ZCAM informed PVF that it filed the necessary applications to allow PVF to commence the Work. Nonetheless, the violations were not cured by ZCAM.

On October 16, 2012, PVF's architect informed ZCAM that it would have to pay the fines and penalties arising from the violations in order to cure them.

PVF discovered that ZCAM filed two applications with the NYC Department of Buildings, one in October 2012 and one in March 2013, to permit the ground floor to be used as an eating area, but that both of the applications were denied because of ZCAM's failure to cure the existing violations.

On April 15, 2013, PVF commenced this action alleging that the violations are preventing it from obtaining the necessary renovation permits to perform and complete the Work. As a result, PVF has incurred and will continue to incur significant expenses.

As of the date of this decision, ZCAM has not cured the violations.

ZCAM and Gofman move to dismiss the Complaint contending that the Lease conclusively establishes a defense and that PVF has failed to state a cause of action.

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "We 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 cognizable legal theory" (id.).

As a preliminary matter, this Court finds that the Complaint must be dismissed as against Gofman, the principal of ZCAM, in his individual capacity because the evidentiary record establishes that he is not a party to the Lease and there are no allegations that he was acting in his individual capacity during the subject transaction.

ZCAM argues that the first cause of action for breach of contract for failure to cure the violations must be dismissed because the Lease clearly provides that "PVF has inspected the [*3][Premises] and accepts them as is, subject to the riders annexed hereto with respect to [ZCAM's] renovations, if any. In any event, [ZCAM] makes no representation as to the condition of the [Premises] and [PVF] agrees to accept the same subject to violations, whether or not of record" (Gofman Aff., Ex. A, ¶ 15).

Furthermore, the rider attached to the Lease (the "Rider") provides that:

"[PVF] has inspected the [Premises] and is thoroughly acquainted with their condition and is accepting the same in its as is where is' physical and legal condition and state of repair on the Commencement Date and [ZCAM] shall not be required to perform any renovations, install any fixtures or equipment or render any services to make the [Premises] suitable for [PVF's] use or occupancy" (id. at § 1.01).

PVF argues that it has been unable to complete the Work as a result of ZCAM's lack of cooperation in obtaining a CO. It alleges that the CO cannot be obtained until ZCAM cures all of the violations.

To that end, PVF submits a letter from the LPC that clearly states that the LPC "is unable to act on [PVF's] application [for interior alterations] until the Notices of Violation have been addressed and rescinded" (Lieberman Aff., Ex. F, Ex. 2).

This completely contradicts the affidavits submitted by Gofman and Steven Wygoda, an architect retained by ZCAM, which attests that the current status of the CO does not prevent PVF from completing the Work.

Furthermore, ZCAM's contention that the terms of the Lease require it to only execute documents and nothing further is nonsensical. Under that interpretation, PVF would never be able to use the Premises because ZCAM would have no obligation to cure the violations and PVF as a tenant would have no standing to cure the violations itself.

That interpretation is clearly not supported by the language of the Lease. Pursuant to § 6.03 of the Rider "[PVF], at its sole cost and expense, shall be responsible for obtaining all necessary approvals, permits, and/or licenses in connection with any change or Alteration. [ZCAM] agrees to cooperate with [PVF] and to execute any documents necessary in order for [PVF] to obtain said approvals, permits, and/or licenses" (id. at § 6.03 [emphasis added]).

The Lease expressly provides that in addition to executing documents, ZCAM agreed to cooperate with PVF in obtaining the requisite approvals, permits and/or licenses.

PVF's Complaint is not subject to dismissal because although the Lease precludes a finding of liability in the event that PVF was unable to use the Premises on the date specified in the Lease and precludes money damages in the event that ZCAM unreasonably [*4]withheld or unreasonably delayed its approval or consent, if the landlord is refusing to make a reasonable effort to cure the violations, occupancy will never occur because of said refusal. There is no waiver of liability in that circumstance.

The provision that in the event that PVF was unable to occupy the Premises by the agreed upon date, the Lease terms "shall not be affected thereby" and that "[ZCAM] shall have no liability to PVF by reason of any such postponement..." (id. at 27.08) is not a defense to anything other than a postponement. A refusal to remove the violations is not a mere postponement.

The Lease provision that if ZCAM's approval or consent is required is also not dispositive. Landlord consent is not an issue here.

The second cause of action for fraudulent inducement, the third cause of action for negligent misrepresentation, the fourth cause of action for unjust enrichment, and the sixth cause of action for promissory estoppel are dismissed.

The fifth cause of action for breach of the implied covenant of good faith and fair dealing is dismissed as duplicative of the breach of contract cause of action.

Accordingly it is,

ORDERED that the defendants' motion to dismiss the amended complaint is granted in to the extent of dismissing the second through sixth causes of action and dismissing the amended complaint as against Slavik Gofman, and otherwise denied, and it is further

ORDERED that defendants are directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry; and it is further

ORDERED that counsel are directed to appear for a preliminary status conference in Part 53 within 30 days of the service of the answer.

This constitutes the decision and order of the Court.

Date: November 14, 2013

ENTER:

______________________

J.S.C.