| Delta Dallas Alpha Corp. v South St. Seaport L.P. |
| 2015 NY Slip Op 02861 |
| Decided on April 2, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on April 2, 2015
Mazzarelli, J.P., Sweeny, DeGrasse, Feinman, Gische, JJ.
14716N 654499/12
v
South Street Seaport Limited Partnership, et al., Defendants-Appellants.
Solomon & Tanenbaum, P.C., White Plains (Clifford M. Solomon of counsel), for appellants.
Rottenberg Lipman Rich, P.C., New York (Robert A. Freilich of counsel), for respondent.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered December 17, 2013, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for leave to amend the complaint to add a cause of action for breach of the implied covenant of good faith and fair dealing as against defendant South Street Seaport Limited Partnership (SSSLP) based on SSSLP's commencement of an action to recover rent under a promissory note and a nonpayment proceeding to evict plaintiff, and to add The Howard Hughes Corporation (HHC) as a defendant and assert a cause of action for intentional interference with contractual relationship against it, unanimously affirmed, with costs.
Plaintiff's failure to submit an affidavit of merit in support of its motion to amend is not fatal to the motion; plaintiff need only show that the proposed amendment is not palpably insufficient or clearly devoid of merit (see MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499 [1st Dept 2010]).
To the extent the claim for breach of the implied covenant of good faith and fair dealing is based on SSSLP's commencement of an action to recover rent under a promissory note and a nonpayment proceeding to evict plaintiff, it is not duplicative of the breach of contract claims since it is based on allegations different from those underlying the contract claims and does not implicate the lease (see Logan Advisors, LLC v Patriarch Partners, LLC, 63 AD3d 440 [1st Dept 2009]). Further, the complaint alleges that SSSLP commenced the promissory note action and nonpayment proceeding to get plaintiff out of the premises, as part of a plan to redevelop the area and charge higher rents, i.e. in bad faith (see Maddaloni Jewelers, Inc. v Rolex Watch U.S.A., Inc., 41 AD3d 269 [1st Dept 2007]; Richbell Info. Servs. v Jupiter Partners, 309 AD2d 288, 302 [1st Dept 2003]).
At this pleading stage, it cannot be determined whether the claim of intentional interference with contractual relationship
against HHC is precluded by HHC's economic justification defense (see Foster v Churchill, 87 NY2d 744, 750-751 [1996]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 2, 2015
CLERK