Studio 1872 Inc. v. Bond St. Levy LLC ( 2024 )

Studio 1872 Inc. v Bond St. Levy LLC (2024 NY Slip Op 01772)

Studio 1872 Inc. v Bond St. Levy LLC

2024 NY Slip Op 01772

Decided on March 28, 2024

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 and Entered: March 28, 2024
Before: Manzanet-Daniels, J.P., Kapnick, González, Mendez, Pitt-Burke, JJ.

Index No. 655646/21 Appeal No. 1941 Case No. 2023-02571

[*1]Studio 1872 Inc., Doing Business as C'est Beau 1872, Plaintiff-Appellant,

v

Bond Street Levy LLC, Defendant, Advanced Retail Construction, Inc., Defendant-Respondent.

Montgomery McCracken Walker & Rhoads LLP, New York (Timothy J. Pastore of counsel), for appellant.

Law Offices of Yan Margolin, New York (Yan Margolin of counsel), for respondent.

Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered May 16, 2023, which denied plaintiff Studio 1872 Inc., doing business as C'est Beau 1872's motion to dismiss defendant Advanced Retail Construction, Inc.'s counterclaims for breach of contract and breach of the implied covenant of good faith and fair dealing, unanimously reversed, on the law, with costs, and the motion granted.

ARC's breach of contract counterclaim is dismissed as barred by the unambiguous language of the release contained in the satisfaction of the mechanic's lien executed by the parties (see Pizzarotti, LLC v X-Treme Concrete Inc., 205 AD3d 487, 488, 488-489 [1st Dept 2022]).

ARC's counterclaim for breach of the implied covenant of good faith and fair dealing is dismissed because a claim for breach of the implied covenant of good faith and fair dealing "may not be used as a substitute for a nonviable claim for breach of contract" (see Sheth v New York Life Ins. Co., 273 AD2d 72, 73 [1st Dept 2000]). In any event, this counterclaim lacks merit because its breach of the implied covenant claim is "intrinsically tied to the damages allegedly resulting from a breach of the contract" (Smile Train, Inc. v Ferris Consulting Corp., 117 AD3d 629, 630 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 28, 2024