46 A.D.3d 478
N.Y. App. Div.
2007

Bruce Morris, Appellant, v 702 East Fifth Street HDFC, Respondent

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

850 NYS2d 6

Edward H. Lehner, J.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered January 18, 2007, which, to the extent appealed from, granted defendant‘s cross motion insofar as it sought to dismiss the first and third causes of action in the supplemental complaint, unanimously reversed, on the law, without costs, that portion of the cross motion denied, and those causes of action reinstated.

On a prior appeal in this action, we restored the tenant‘s complaint to the trial calendar based on defendant landlord‘s failure to comply with the terms of a March 2000 settlement agreement (8 AD3d 27 [2004]). Plaintiff thereafter served a supplemental complaint with three causes of action. Contrary to the court‘s findings, the first cause of action, for breach of the lease arising out of defendant‘s refusal to sign governmental permits, is timely. As the original complaint gave notice of this alleged failure to sign the appropriate forms, such notice must be deemed to have been interposed at the time of the original pleading (CPLR 203 [f]), and the cause should not have been dismissed (see McHale v Anthony, 41 AD3d 265 [2007]).

On a motion to dismiss, the complaint is to be liberally construed and the alleged facts accepted as true, affording the plaintiff every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The third cause of action properly pleaded a breach of the settlement agreement, setting forth the existence of a valid contract, plaintiff‘s performance of his obligations thereunder, defendant‘s breach by its refusal to schedule a sound test, and resulting damages in the form of lost profits (see Furia v Furia, 116 AD2d 694 [1986]).

Defendant‘s arguments regarding the parties’ contemplation of lost profits and plaintiffs ability to prove same are more appropriately addressed on a motion for summary judgment, and are thus premature at this juncture. Concur—Tom, J.P., Friedman, Nardelli and Catterson, JJ.