Lembo v. Charles H. Greenthal Mgmt. Corp.

1

2023 NY Slip Op 30295(U)

PIETRO LEMBO, Plaintiff, v. CHARLES H. GREENTHAL MANAGEMENT CORP., STEPHEN GREENSPAN, DESI NDREU, JONATHAN WEST, 110 EAST 36TH ST. REALTY CORP., HOWARD ALALOUF, LARISA BORDANOVA SHAER, COMPASS, INC., Defendants.

Index No. 154475/2022, Motion Seq. No. 002

Supreme Court, New York County

January 24, 2023

Unpublished Opinion

MOTION DATE 07/27/2022

PRESENT: HON. DAKOTA D. RAMSEUR, JUSTICE

DECISION + ORDER ON MOTION

DAKOTA D. RAMSEUR, JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 002)9, 10, 11, 12, 14,25 were read on this motion to/for DISMISS_:.

Plaintiff Pietro Lembo (plaintiff), pro se, commenced this action against defendants Charles H. Greenthal Management Corp. (Greenthal), Stephen Greenspan, Desi Ndreu, Jonathan West, 110 East 36th St. Realty Corp. (110 Coop), and Howard Alalouf (collectively, the Coop defendants), and Larisa Bordanova Shaer and Compass Inc. d/b/a Compass (collectively the Compass defendants), alleging that the defendants engaged in libel and several acts that interfered with plaintiffs existing business relationships with tenants in the cooperative apartment building located at 110 East 36th Street, New York, New York (Coop), causing him to suffer actual and prospective business losses in the amount of $2,500,000. In motion sequence 001, the Compass defendants now move to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7). In motion sequence 002, the Coop defendants move to dismiss pursuant to CPLR 3211(1) and (7). Both motions are opposed. For the reasons stated below, the Compass defendants' motion is granted, and the Coop defendants' motion is granted in part.

BACKGROUND

Plaintiff is a licensed real estate broker who handled numerous transactions on behalf of various shareholders at 110 Coop for over 20 years (NYSCEF doc. no. 5, ¶¶ 3, 16 57). According to plaintiff, he was the exclusive broker for the Zirinsky Group, the sponsor for the building, and many other shareholders (NYSCEF doc. no. 5, ¶ 16). Plaintiff asserts that the agreement with the Zirinsky Group was oral but its existence was evidenced by the seven sale and rental transactions he had brokered for the Zirinsky Group between 2005 and 2019 (NYSCEF doc. no. 16, ¶ 11; doc. no. 19). Plaintiff alleges that in May 2019, defendant Greenthal, the building's property management company, interfered with plaintiffs agreement with the Zirinsky Group when Greenthal employees insisted that a transfer of unsold shares from one Zirinsky Group sponsor unit to another required board approval (NYSCEF doc. no. 5, ¶¶ 17-28). Plaintiff informed Greenspan, a Greenthal employee, that under the terms of the proprietary lease, sponsor units had special status and were exempt from sublet and board application fees and transfers for those units did not require board approval (NYSCEF doc. no. 5, ¶ 17-18). According to plaintiff, Greenthal continued to disregard the special status afforded to these units and imposed onerous requirements in order to process the transfer, which led to a verbal altercation between plaintiff and a Greenthal employee named Peggy Garcia (NYSCEF doc. no. 5, ¶¶ 20, 23-24). On August 26, 2019, defendant Alalouf, a board member and shareholder at the Coop, allegedly left a voicemail for plaintiff directing him to apologize to Ms. Garcia or "risk banishment from Greenthal" (NYSCEF doc. no. 5, ¶ 25). Two days later, on August 28, 2019, Greenspan, sent an email to plaintiff stating that plaintiff had been "abusive" to the employee (NYSCEF doc. no. 5, ¶¶ 23-25). Greenspan continued to insist that the tenant transfer needed board approval until board member Alalouf intervened and clarified that board approval was not required (NYSCEF doc. no. 5, ¶¶ 27-28; doc. no. 18). The tenant transfer was subsequently completed (NYSCEF doc. no. 5, ¶ 28). Plaintiff alleges that Alalouf and another board member, Marilyn Philips, were upset that plaintiff alerted the Zirinsky Group of the sponsor unit sublease fee exemption and threatened plaintiff that he would not be able to do business in the building if the Zirinsky Group stopped paying its sublet fees (NYSCEF doc. no. 5, ¶¶ 97-99).

The complaint alleges that Greenthal imposed numerous changes to the board application process throughout 2017-2019, including retaining a third-party processing service called "Boardpackager," which caused delays in the application process and imposed additional application and document review fees (NYSCEF doc. no. 5, ¶¶ 29, 31, 70-76). Plaintiff notified Alalouf and Ndreu, an officer of Greenthal, of the problems with the new service, but those concerns were ignored (NYSCEF doc. no. 5, ¶ 30-31). Plaintiff alleges that Greenthal's decision to use Boardpackager impacted plaintiffs business because he had to notify shareholders of the additional fees (NYSCEF doc. no. 5, ¶ 79-81). In November 2019, plaintiff filed a complaint against Greenthal with the New York Department of State, Licensing Division (DOS) for "failure to properly supervise staff, charging illegal fees, failure to understand agency laws, offering incorrect legal advice, and tie-in arrangements by boardpackager" (NYSCEF doc. no. 5, ¶ 82). Alalouf, who was allegedly upset because the building incurred legal fees in connection with the DOS investigation, told plaintiff that he was banned from conducting business in the building, and made multiple requests that plaintiff withdraw the DOS complaint (NYSCEF doc. no. 5, ¶ 87, 94).

According to plaintiff, the Coop defendants introduced new brokers into the building to replace plaintiff and embarked on a "malicious campaign" that caused him to lose his ongoing relationship with the Zirinsky Group, who began using defendant Shaer as its broker, and his ability to generate new business in the building (NYSCEF doc. no. 5, ¶¶ 33, 36). Plaintiff alleges that defendants successfully pressured the Zirinsky Group to terminate its relationship with plaintiff in August 2020 and sign an exclusive deal with Shaer, by "intentionally and/or negligently committing] acts or omissions designed to disrupt and sabotage the relationship" (NYSCEF doc. no. 5, ¶¶ 61-63, 67). According to plaintiff, the principal representative of the Zirinsky Group said his "hands were tied" when plaintiff inquired why he had terminated their longstanding relationship without notice (NYSCEF doc. no. 5, ¶ 65).

Plaintiff also alleges that the Coop defendants intentionally took steps to stop plaintiff from doing business in the building, telling him that they would simply ignore any board applications submitted by plaintiff (NYSCEF doc. no. 5, ¶ 90), and then subsequently subjected a sublease application handled by plaintiff to unwarranted and unprecedented scrutiny, which plaintiff alleges violated state anti-discrimination laws (NYSCEF doc. no. 5, ¶¶ 85-92).

Plaintiff asserts that an email sent by Boardpackager to a shareholder that incorrectly stated that there were "deficiencies" with the board application, was defamatory because it had the effect of damaging plaintiffs reputation by making him look unprofessional and incompetent (NYSCEF doc. no. 5, ¶¶ 51-53). Plaintiff attributed these incorrect statements to Greenthal's negligent failure to have a licensed office manager supervising the office (NYSCEF doc. no. 5, ¶¶ 48-49). Likewise, plaintiff alleges that emails sent by Alalouf and Greenthal employees to shareholders whom plaintiff had worked with in the past informing them that Shaer was the "preferred broker" for the building, were defamatory and designed to disrupt his business relationships by making him seem incompetent (NYSCEF doc. no. 5, ¶¶ 115-125). Plaintiff alleges that he was defamed in an email sent on February 4, 2021, by Alalouf and Ms. Garcia to David Harris, a shareholder plaintiff had worked with in the past, encouraging the shareholder to work with Shaer (NYSCEF doc. no. 5, ¶ 115-117), and in an email sent by Ms. Garcia to another of plaintiffs clients wherein Ms. Garcia recommended "a more reputable agent" (NYSCEF doc. no. 5, ¶ 121). Although this client stated her intentions to continue to work with plaintiff, Ms. Garcia nevertheless sent a second email recommending Shaer (NYSCEF doc. no. 5, ¶ 122). There is no indication that any of these emails mentioned or referenced plaintiff. Indeed, in the February 4, 2021, email plaintiffs name does not come up at all (NYSCEF doc. no. 11). Further, the email notes that although the building has a preferred broker, the shareholder is free to engage any broker of his choosing (id.). Despite plaintiffs allegations that these emails were intended to disrupt his business in the building, the complaint does not allege that any of the plaintiffs clients to whom Shaer was referred opted not to do business with plaintiff as a result (NYSCEF doc. no. 5, ¶¶ 116-117, 121-122, 123-127; doc. no. 23).

With respect to the Compass defendants, plaintiff alleges that Compass engaged in tortious interference at 110 Coop by contacting the three shareholders that Alalouf and Ms. Garcia had emailed in order to retain them as clients (NYSCEF doc. no. 5, ¶¶ 103-115). The third shareholder, whom plaintiff asserts he "represented [ ] as exclusive broker for the sublet and sale [ ] since 2005" (NYSCEF doc. no. 5, ¶ 123), was introduced to Shaer through a February 27, 2022, email sent by Alalouf after the subtenant submitted notice of his intent to vacate (NYSCEF doc. no. 5, ¶¶ 124125). On February 28, 2022, Shaer emailed the shareholder with the intent to be hired by him (NYSCEF doc. no. 5, ¶ 126). Plaintiff alleges that Shaer violated NYCRR 175.9 by contacting plaintiffs clients.

The Coop Defendants moved to dismiss pursuant to CPLR 3211(a)(1) and (7), arguing that plaintiffs tortious...