Opinion
2014-04-10
EDEN ROC, LLLP, Plaintiff–Appellant, v. MARRIOTT INTERNATIONAL, INC., et al., Defendants–Respondents.
Pryor Cashman LLP, New York (Todd E. Soloway of counsel), for appellant. Venable LLP, New York (David N. Cinotti of counsel), for respondents.
Pryor Cashman LLP, New York (Todd E. Soloway of counsel), for appellant. Venable LLP, New York (David N. Cinotti of counsel), for respondents.
GONZALEZ, P.J., ACOSTA, SAXE, RICHTER, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered September 24, 2013, which, to the extent appealed from, granted the portion of defendants' motion to dismiss the complaint seeking dismissal of the twelfth cause of action for trespass, unanimously affirmed, without costs.
Plaintiff-hotel owner's cause of action for trespass was properly dismissed since it is not based on any tort obligation that was “apart from and independent of” defendants hotel managers' obligation under the management agreement to peacefully vacate and surrender the hotel by the effective date of termination of the agreement ( New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 316, 639 N.Y.S.2d 283, 662 N.E.2d 763 [1995];Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 390, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ). The trespass claim is also duplicative of the breach of contract claims since it is founded on the same allegations that form the basis of the claims for breach of contract ( see Wildenstein v. 5H & Co., 97 A.D.3d 488, 492, 950 N.Y.S.2d 3 [1st Dept. 2012] ).
We have considered plaintiff's remaining arguments and find them unavailing.