The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 74, 75, 78, 83 were read on this motion to/for DISMISSAL. The following e-filed documents, listed by NYSCEF document number (Motion 002) 67, 68, 69, 70, 71, 72, 73, 77, 79, 80, 81, 82 were read on this motion to/for AMEND CAPTION/PLEADINGS. DECISION + ORDER ON MOTION In this action alleging, inter alia, violations of the General Obligations Law (GOL) and fraud in connection with the plaintiff’s rental of the defendant’s luxury summer home in Sagaponack, Long Island, the defendant moves pursuant to CPLR 3211(a)(1) and (a)(7) to dismiss the amended complaint in its entirety (SEQ 001). The plaintiff opposes the defendant’s the motion and separately moves pursuant to CPLR 3025(b) for leave to file a second amended complaint (SEQ 002). The defendant opposes the plaintiff’s motion. For the following reasons, the defendant’s motion is granted, and the plaintiff’s motion is denied. As alleged in the amended complaint, the plaintiff and the defendant entered into a lease agreement dated May 21, 2021, (the lease) whereby the defendant agreed to rent to the plaintiff a single-family home at 135 Crestview Lane in Sagaponack (the premises) for the 103-day period running from May 28, 2021, through September 7, 2021. The total rent due for the term of the lease was defined as $775,000.00. The lease required the plaintiff to pay $77,500.00 to Sotheby’s International Realty (SIR) and $182,500.00 to the defendant upon signing, $260,000.00 to the defendant on or before June 29, 2021, and $255,000.00 to the defendant on or before July 29, 2021. The lease further required the plaintiff to pay to the defendant a $77,500.00 security deposit and a separate $77,500.00 utility and service deposit upon signing. In accordance with the lease plaintiff paid the defendant the sums of $182,500.00 and $155,000.00, and paid SIR the sum of $77,500.00, at signing. The plaintiff made no other required payments. While she contends that the premises were “filthy,” “reeked of the stench of urine,” “smelled of either canine or human feces,” and “stank of mold,” among other defects, the plaintiff occupied the premises for the entirety of the lease term, with a property manager employed by the defendant at her disposal. On September 3, 2021, approximately four days before the expiration of the term, the plaintiff commenced this action. When assessing the adequacy of a pleading in the context of a motion to dismiss under CPLR 3211(a)(7), the court’s role is “to determine whether [the] pleadings state a cause of action.” 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 151-152 (2002). To determine whether a claim adequately states a cause of action, the court must “liberally construe” it, accept the facts alleged in it as true, accord it “the benefit of every possible favorable inference” (id. at 152: see Romanello v. Intesa Sanpaolo, S.p.A., 22 NY3d 881 [2013]; Simkin v. Blank, 19 NY3d 46 [2012]), and determine only whether the facts, as alleged, fit within any cognizable legal theory. See Hurrell-Harring v. State of New York, 15 NY3d 8 (2010); Leon v. Martinez, 84 NY2d 83 (1994). On a motion to dismiss based on documentary evidence, dismissal is appropriate where “the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.” Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 (2002) (internal citation omitted). The first and second causes of action of the amended complaint, which are each premised on the defendant’s alleged violation of GOL §7-108(a), are dismissed for failure to state claims. In relevant part, GOL §7-108(a) prohibits a residential landlord from requiring any “deposit or advance” exceeding the amount of one month’s rent. While the plaintiff correctly contends that the statute’s carveout for “seasonal use dwelling units” is not applicable insofar as it did not exist in the version of the statute in effect at the time the subject lease was entered, she has not pleaded that the lease required her to make a deposit or advance in violation of the applicable statute. Rather, she paid a brokerage fee to SIR and a sum less than one month’s rent for her immediate use and occupancy of the premises, neither of which is not a “deposit or advance.” She also paid a combined $155,000.00 security and utility deposit, which does not exceed one month’s rent as calculated by the plaintiff. Notwithstanding that she never made any payments beyond the initial brokerage fee, partial payment towards the first month’s rent, and $155,000.00 deposit, the plaintiff asserts that the subsequent payment schedule provided in the lease violated GOL §7-108(a) because each of the two remaining sums was in excess of one month’s rent. However, the excess amount the plaintiff objects to was, in each instance, a sum that would cover the shortfall for the previous months’ rent built into the payment schedule. Thus, the amounts sought were not deposits or advances but payments for the plaintiff’s completed use of the premises. The third, fourth, and fifth causes of action of the amended complaint, which are each based in fraud, likewise fail to state claims. The plaintiff fails to plead with particularity any material statement of fact made to her in connection with the lease. See CPLR 3016(b). Moreover, the specific contractual representations about the state of the premises the plaintiff would be provided, which she contends were violated, do not give rise to a fraud claim. “It is well settled that a cause of action for fraud will not arise when the only fraud charged relates to a breach of contract.” Gordon v. Dino De Laurentiis Corp., 141 AD2d 435, 436 (1st Dept. 1988); see Wyle Inc. v. ITT Corp., 130 AD3d 438, 439 (1st Dept. 2015). In light of the foregoing, the amended complaint is dismissed in its entirety. The plaintiff’s belated motion to file a second amended complaint is denied insofar as there is no viable complaint to amend. See Favourite Limited v. Cico, 181 AD3d 426 (1st Dept. 2022); Tanner v. Stack, 176 AD3d 429 (1st Dept. 2019); Carpenter v. Plattsburgh Wholesale Homes, Inc., 83 AD3d 1175 (3rd Dept. 2011); Amaranth v. Nat’l Australia Bank Ltd., 40 AD3d 279 (1st Dept. 2007); Jeffrey L. Rosenberg & Assocs. v. Kadem Capital Mgmt., Inc., 306 AD2d 155 (1st Dept. 2003). However, the plaintiff is not without remedy as she may commence a new action asserting unpleaded claims, if she is so advised. See Favourite Limited v. Cico, supra. Accordingly, upon the foregoing papers, it is ORDERED that the defendant’s motion to dismiss the amended complaint (SEQ 001) is granted in its entirety, and the amended complaint and all claims therein are dismissed; and it is further ORDERED that the plaintiff’s motion to file a second amended complaint (SEQ 002) is denied. This constitutes the Decision and Order of the court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION SEQ 001 X GRANTED DENIED GRANTED IN PART OTHER SEQ 002 GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: April 14, 2023
