LOREN RIDINGER, ETC., plf-ap, v. WEST CHELSEA DEVELOPMENT PARTNERS LLC def-res

4100. LOREN RIDINGER, ETC., plf-ap, v. WEST CHELSEA DEVELOPMENT PARTNERS LLC def-res — Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Ethan A. Kobre of counsel), for ap — Drinker Biddle & Reath LLP, New York (Richard J.L. Lomuscio of counsel), for res — Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered March 21, 2016, which granted defendants' motion to dismiss the complaint and denied plaintiff's cross motion for leave to amend the complaint to add additional plaintiffs, unanimously modified, on the law, to reinstate the derivative claims, except the derivative breach of contract claims against all defendants other than West Chelsea Development Partners, LLC, and to grant leave to amend the complaint, and otherwise affirmed, without costs.

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4100. LOREN RIDINGER, ETC., plf-ap, v. WEST CHELSEA DEVELOPMENT PARTNERS LLC def-res — Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Ethan A. Kobre of counsel), for ap — Drinker Biddle & Reath LLP, New York (Richard J.L. Lomuscio of counsel), for res — Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered March 21, 2016, which granted defendants’ motion to dismiss the complaint and denied plaintiff’s cross motion for leave to amend the complaint to add additional plaintiffs, unanimously modified, on the law, to reinstate the derivative claims, except the derivative breach of contract claims against all defendants other than West Chelsea Development Partners, LLC, and to grant leave to amend the complaint, and otherwise affirmed, without costs.

Plaintiff’s individual claims were barred by a prior release. However, plaintiff could not and did not release the derivative claims on behalf of the unit owners (see Caprer v. Nussbaum, 36 AD3d 176 [2d Dept 2006]). Plaintiff was nevertheless bound by a covenant not to sue, in which she promised not to bring any claim regarding the unit, the building or the condominium, including in a derivative capacity. This did not bar the instant suit on derivative claims, but it does expose plaintiff to a possible claim for damages for breach of the covenant (see Colton v. New York Hosp., 53 AD2d 588, 589 [1st Dept 1976]).

LOREN RIDINGER, ETC., plf-ap, v. WEST CHELSEA DEVELOPMENT PARTNERS LLC def-res

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