Case Information

Jacobs Private Equity, LLC, Appellant, v 450 Park LLC, Respondent.

Appellate Division of the Supreme Court of New York, First Department

[803 NYS2d 14]

Order, Supreme Court, New York County (Diane A. Lebedeff, J.), entered on or about April 5, 2005, which, inter alia, granted defendant’s cross motion pursuant to CPLR 3211 to dismiss the amended complaint, unanimously affirmed, with costs.

The amended complaint fails to state a viable cause of action for repudiation/anticipatory breach of contract because it contains no allegation of a definite and final communication by defendant landlord of its intention to forgo its obligations under the lease (see Rachmani Corp. v 9 E. 96th St. Apt. Corp., 211 AD2d 262, 266-267 [1995]); plaintiff tenant does not allege that defendant landlord definitively refused all future performance of its obligations under the lease if plaintiff did not accept the landlord’s interpretation of the lease.

Nor does the amended complaint allege viable causes of action for breach of contract, rescission, breach of the implied covenant of good faith and fair dealing, and/or constructive eviction. The alleged breach by defendant landlord of the covenant not to unreasonably withhold consent to subletting does not defeat the purpose of the contract so substantially as to support a claim for rescission (see Babylon Assoc. v County of Suffolk, 101 AD2d 207, 215 [1984]; 601 W. 26 Corp. v John Wiley & Sons, 32 AD2d 522 [1969]). The cause of action for breach of the implied covenant of good faith and fair dealing was properly dismissed as duplicative of the insufficient breach of contract claim (see Triton Partners v Prudential Sec., 301 AD2d 411 [2003]). The cause of action for constructive eviction was properly dismissed since there is no claim that the alleged failure of the landlord to provide an operable alarm system substantially and materially deprived the tenant of the beneficial use and enjoyment of the premises (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 [1970]).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Tom, J.P., Andrias, Sullivan, Gonzalez and Sweeny, JJ.