Realty Law Digest
Scott E. Mollen, a partner at Herrick, Feinstein, discusses "Tumayeva v. Oceana Condo" where a prospective buyer's breaches of contract and fiduciary duty claims were dismissed, and "111 Fulton St. Investors v. Fulton Quality Foods, where the court rejected a tenant's defenses of casualty and eminent domain clauses in the lease for default.
March 23, 2021 at 02:20 PM
14 minute read
Scott Mollen
Condominiums—Prospective Condo Purchaser Who Could Not Purchase Sued for Tortious Interference With Contract, Breach of Contract, Breach of the By-laws and/or Breach of Plaintiff's Third-Party Beneficiary Status Under the By-laws, and Breach of Fiduciary Duty—Court Dismissed All Claims Except Tortious Interference With Contract—Board Failed To Exercise Right of First Refusal—Payment of Processing Fee Did Not Create a Contract—Board President Allegedly Didn't Want Noisy Children Living Above His Apartment and Board Allegedly Concerned About Low Price Affecting Values In the Building
A prospective purchaser of a condominium unit who was unable to purchase the subject unit, sued the condominium association's Board of Managers (Board) and individuals who are board members for "tortious interference with contract, breach of contract, breach of the By-Laws and/or breach of plaintiff's third-party beneficiary status under the By-Laws, and breach of fiduciary duty." The defendants moved to dismiss the complaint for lack of standing, failure to state a cause of action, and based on documentary evidence, pursuant to CPLR 3211(a)(1), (3), and [7].
On this motion, the court was required to "accept as true the factual allegations of the complaint and accord the plaintiff all favorable inferences which may be drawn therefrom…." The court's task was to determine "whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained" and "[i]f the plaintiff can succeed upon any reasonable view of the allegations, the complaint may not be dismissed…."
The court found that the plaintiff lacked standing to assert claims based on an alleged breach of the bylaws. The bylaws "did not apply to her directly or as a third-party beneficiary, as she was solely a prospective unit purchaser." The court also dismissed the breach of fiduciary duty claim for the "same reason," noting that no facts were alleged that "would establish a fiduciary relationship between her and any of the defendants."
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