Mendez v. 21 West 86th Street LLC , 148 A.D.3d 651 ( 2017 )

Mendez v 21 W. 86th St. LLC (2017 NY Slip Op 02514)

Mendez v 21 W. 86th St. LLC

2017 NY Slip Op 02514

Decided on March 30, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 30, 2017
Tom, J.P., Moskowitz, Feinman, Gische, Kapnick, JJ.

3573 157759/14

[*1]Joan H. Mendez, et al., Plaintiffs-Respondents,

v

21 West 86th Street LLC, et al., Defendants-Appellants, Nationwide Insurance Company, Defendant.

Kellner Herlihy Getty & Friedman LLP, New York (Carol Anne Herlihy of counsel), for appellants.

Law Office of Barry Yellen, New York (Barry J. Yellen of counsel), for respondents.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about February 19, 2016, which, to the extent appealed from, denied the portion of defendants 21 West 86th Street LLC and Adellco Management, LLC's CPLR 3212 motion that sought dismissal of plaintiffs' second and third causes of action in the amended complaint, unanimously reversed, on the law, without costs, and that part of the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiffs alleged in their second cause of action that defendants breached their promise to provide building-wide systems to the rent-stabilized tenants of the building. However, plaintiffs failed to submit any evidence that they had given any consideration in exchange for defendants' alleged promise, and thus failed to raise an issue of fact as to whether they had a binding contract with defendants (see Presbyterian Church of Albany v Cooper , 112 NY 517, 520 [1889]; Delor Corp. v Quigley, Langer, Hames, Perlmutter, Mankes & Nuskind, Partnership , 287 AD2d 680, 682 [2d Dept 2001]).

The record refutes the third cause of action's allegations that defendants removed the building's rooftop garden and denied plaintiffs' access to it. The record demonstrates that defendants renovated the rooftop garden and the recreational area on the roof for the benefit of the tenants.

We have considered the other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 30, 2017

CLERK