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Rondinone v. McClintock

Dismissal Denied; Factual Issues as to Repairs of Lower Roof

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 were read on this motion to/for DISMISSAL. DECISION + ORDER ON MOTION   Plaintiff commenced this action alleging a single cause of action for breach of contract when defendant allegedly refused to repair the lower roof of the apartment building in which plaintiff and defendant reside under the terms of their agreement. Defendant denies any such breach and timely brings this pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7). Defendant also seeks attorneys’ fees pursuant to the contract. Plaintiff opposes the motion and defendant replies. For the reasons below, defendant’s motion is denied. The following allegations are taken from the complaint and are presumed true for the purposes of this motion.1 Plaintiff and defendant are shareholders in the same cooperative corporation of the building in which they live (NYSCEF Doc. No. 1, complaint at

3-4). Plaintiff resides in Unit 2 and defendant resides in Unit 1 (id.). Units 2 and 3 had direct access to the lower roof; however, defendant did not have access to the lower roof, which was directly above his unit (id. at 10). In 2017, defendant and other non-party owners of units 2 and 3 executed the Lower Roof License Agreement (“subject agreement”) to improve and repair the lower roof to be accessible by all unit owners (id. at

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