Lusker v. Zelmanoff
248 A.D.2d 130
| N.Y. App. Div. | 1998

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about January 2, 1996, which, inter alia, granted defendant’s CPLR 4401 motion to dismiss the complaint for failure to establish a prima facie case, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 4, 1996, which denied plaintiffs motion for reargument, unanimously dismissed, without costs.

The complaint was properly dismissed on the ground that under the subject contract, defendant was obligated only to apply for a retail variance for her loft space, and, since plaintiffs proof admitted such application, there were no breach of contract issues for the jury to decide. That defendant’s applica*131tion sought residential as well as retail use of her space did not tend to show that she acted in bad faith, where there was nothing in the contract that precluded such a dual application, and there was no evidence that defendant submitted incomplete proofs with respect to retail-use portion of the application. Nor will plaintiff be heard to argue for the first time on appeal that defendant breached the contract by filing an application with the City Planning Commission that sought a “grandfathering” of the illegal use, rather than a “variance” as required under the contract. We note that plaintiff testified that defendant’s obligation under the contract was for either a variance or grandfathering, and that both parties used the term “variance” to mean grandfathering. Furthermore, no damages were suffered by plaintiff as a consequence of defendant’s refusal to cease living in the subject space as provided in the contract, since defendant owned the shares allocated that space and the denial of her application for a retail use meant that the space could not be leased as contemplated by the contract. We have considered plaintiff’s remaining contentions and find them to be without merit. Concur — Milonas, J. P., Nardelli, Williams and Mazzarelli, JJ.