Gutierrez v. Mcgrath Mgmt. Servs., Inc.

152 A.D.3d 498

59 N.Y.S.3d 52

Glenda GUTIERREZ, appellant,

v.McGRATH MANAGEMENT SERVICES, INC., et al., respondents.

2015-01039, Index No. 60670/13.

Supreme Court, Appellate Division, Second Department, New York.

July 5, 2017.

Peska & Associates, P.C., White Plains, NY, for appellant.

Venable, LLP, New York, NY (David A. Katz and Adam G. Possidente of counsel), for respondent McGrath Management Services, Inc.

Milber Makris Plousadis & Seiden, LLP, White Plains, NY (Leonardo D'Alessandro and Denise Graham of counsel), for respondents Vista on the Lake, Inc., Board of Managers of Vista on the Lake Condominium, and Francine Belloni.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and FRANCESCA E. CONNOLLY, JJ.

Appeal from an order of the Supreme Court, Westchester County (Robert DiBella, J.), dated January 5, 2015. The order granted the motion of the defendant McGrath Management Services, Inc., and the separate motion of the defendants Vista on the Lake, Inc., Board of Managers of Vista on the Lake Condominium, and Francine Belloni, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendants Vista on the Lake, Inc., Board of Managers of Vista on the Lake Condominium, and Francine Belloni which were pursuant to CPLR 3211(a) to dismiss the second cause of action and third cause of action insofar as asserted against them, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, with one bill of costs to the plaintiff payable by the defendants Vista on the Lake, Inc., Board of Managers of Vista on the Lake Condominium, and Francine Belloni, and one bill of costs to the defendant McGrath Management Services, Inc., payable by the plaintiff.

In July 2013, the plaintiff, an owner of a condominium unit at Vista on the Lake Condominiums, commenced this action against the defendants Vista on the Lake, Inc., Board of Managers of Vista on the Lake Condominium (hereinafter the Board), and Francine Belloni, the Vice President of the Board (hereinafter collectively the Vista defendants), as well as the defendant McGrath Management Services, Inc. (hereinafter McGrath). In the first cause of action, the plaintiff sought to recover damages for tortious interference with contractual relations against Vista on the Lake, Inc., and the Board, alleging that those defendants maliciously interfered with the contract between the plaintiff and her tenant. In the second cause of action, the plaintiff sought to recover damages for battery against Belloni. The third cause of action, to recover damages for housing discrimination in violation of the Federal Fair Housing Act ( 42 U.S.C. § 3601 et seq. ), and the fourth cause of action, alleging defamation, were asserted against all of the defendants. McGrath moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it, and the Vista defendants separately moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them. In the order appealed from, the Supreme Court granted both motions.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp., 139 A.D.3d 1040, 1041–1042, 34 N.Y.S.3d 82 ; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Sasidharan v. Piverger, 145 A.D.3d 814, 815, 44 N.Y.S.3d 85 ). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Agai v. Liberty Mut. Agency Corp., 118 A.D.3d 830, 832, 988 N.Y.S.2d 644 ; see

Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Thomas v. LaSalle Bank N.A., 79 A.D.3d 1015, 1017, 913 N.Y.S.2d 742 ). In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that the action is barred by documentary evidence, " the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v. Decolator, 121 A.D.3d 845, 847, 994 N.Y.S.2d 368 ; see

Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp., 139 A.D.3d at 1041, 34 N.Y.S.3d 82 ; Lucia v. Goldman, 68 A.D.3d 1064, 1065, 893 N.Y.S.2d 90 ).

Here, the Supreme Court properly granted that branch of the Vista defendants' motion which was to dismiss the cause of action to recover damages for tortious interference with contract for failure to state a cause of action. "Tortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom" ( Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370 ; see Brooklyn Historic Ry. Assn. v. City of New York, 126 A.D.3d 837, 840, 7 N.Y.S.3d 152 ). Here, the complaint failed to allege that the plaintiff's tenant breached her contract with the plaintiff as a result of the actions of Vista on the Lake, Inc., and the Board (see Bennett v. State Farm Fire & Cas. Co., 137 A.D.3d 727, 729, 26 N.Y.S.3d 550 ; Tuscan/Lehigh Dairies, Inc. v. Beyer Farms, Inc., 136 A.D.3d 799, 803, 26 N.Y.S.3d 115 ).

However, the Supreme Court erred in granting that branch of the Vista defendants' motion which was pursuant to CPLR 3211(a) to dismiss the second cause of action, alleging battery against Belloni. "To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature" ( Cotter v. Summit Sec. Servs., Inc., 14 A.D.3d 475, 475, 788 N.Y.S.2d 153 ; see Thaw v. North Shore Univ. Hosp., 129 A.D.3d 937, 938–939, 12 N.Y.S.3d 152 ). The complaint alleged that, on June 2, 2013, while the plaintiff and her family were at the pool area at Vista on the Lake Condominiums, the plaintiff was "physically grabbed by the Defendant Belloni," "without provocation," and that shortly before being " physically attack[ed]," Belloni told the plaintiff that she was not allowed to be in the pool area because she was in arrears in her monthly maintenance payments. In addition, the complaint alleged that "Belloni caused to harm [sic] the Plaintiff by unlawfully grabbing [her] without provocation and/or consent." Accepting these facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint adequately stated a cause of action to recover damages for battery (see CPLR 3211[a][7] ). Moreover, the evidence submitted by the Vista defendants did not conclusively establish a defense to this cause of action as a matter of law (see CPLR 3211[a][1] ).

The Supreme Court also erred in granting that branch of the Vista defendants' motion which was pursuant to CPLR 3211(a) to dismiss the third cause of action to recover damages for housing discrimination in violation of the federal Fair Housing Act ( 42 U.S.C. § 3601 et seq. ) insofar as asserted against them. That statute provides, in relevant part, that "it shall be unlawful ... [t]o discriminate against any person...