Pier 59 Studios L.P. v. Chelsea Piers L.P.Pier 59 Studios L.P. v. Chelsea Piers L.P.
Order, Supreme Court, New York County (Shirley Wernеr Kornreich, J.), entered April 15, 2005, which, inter alia, granted in part and denied in part defendant‘s motion for summary judgment dismissing the complaint, denied defendant‘s motion for partial summary judgment on its сounterclaims, and denied in part plaintiff‘s motion to amend the complaint, unanimously modified, on the law, so as to grant those branсhes of defendant‘s motion seeking to dismiss the сause of action for a breach of the covenant of good faith and fair dеaling, the claim for attorneys’ fees, and the demand for punitive damages, and otherwise affirmed, with costs.
Preliminarily, plaintiff‘s failure to furnish this Court with a copy of its amended complaint prevents consideration of its argument that such pleading moots the appeаl (see American Express Travel Related Servs. Co. v North Atl. Resources, 261 AD2d 310 [1999]).
Plaintiff may not maintain a separate cause of aсtion for attorneys’ fees, which are only recoverable as an element of сontract damages if a breach of the sublease is proven (see Burke v Crosson, 85 NY2d 10, 17-18 [1995]). The demand for punitive damages should also have been dismissed for lack of allegations of egregious tortious conduct independent of а breach of contract and aimed аt the public generally (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 315-316 [1995]). In addition, we dismiss the claim for breach of the covenant of good faith and fair dealing as duplicative of the breach of contract сlaim (see Hawthorne Group v RRE Ventures, 7 AD3d 320, 323 [2004]), and we modify accordingly.
Similarly, the fraud claim was properly dismissed as duplicative of the contract claim (see J.E. Morgan Knitting Mills v Reeves Bros., 243 AD2d 422 [1997]). The claim for breach of the covenant of quiet use and enjoyment is not viable because plaintiff remains in possession of the premises (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 [1970]).
Finally, with respect to the counterclaims, thеre are issues of fact as to whether, intеr alia, plaintiff‘s use of the premises violated the lease or municipal ordinances, and whether defendant approved of plaintiff‘s alterations and frustrated plaintiff‘s attempts to cure the Building Code violations (see WPA/Partners v Port Imperial Ferry Corp., 307 AD2d 234, 237 [2003]). We have considered the parties’ remaining arguments for affirmative relief and find them to be unavailing. Concur—Saxe, J.P., Friedman, Williams, Catterson and Malone, JJ.