2018 NY Slip Op 51958

Citation: 2018 NY Slip Op 51958
Jurisdiction: New York (state)
Source verification: cross_accepted_sealed
Original Source: https://www.nycourts.gov/reporter/3dseries/2018/2018_51958.htm ↗

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complaint, exhibit 14 at 17. The Appellate Division, First Department [*8]affirmed this Court's decision regarding plaintiffs' motion to
renew/reargue.

Because plaintiffs in the 2015 action served an amended complaint which exceeded the
scope of this Court's order, defendants rejected it, resulting in plaintiffs' motion for leave to
amend their complaint in the 2015 action in the form of their proposed 42-page amended 2015
complaint, with new and varied allegations asserted in support of its causes of action, including
the breach of fiduciary duty cause of action,[FN8]
which also sought injunctive relief unlike any relief sought in the original complaint. In addition,
that proposed complaint added a demand for injunctive relief under the breach of contract cause
of action that had been reinstated. Plaintiffs thereafter commenced the 2017 action and, in
October 2017, served an amended 48-page complaint in that action, which is, for the most part,
identical to the proposed amended complaint in the 2015 action, with minor variations and
additional facts.

In particular, the amended 2017 complaint, in support of its breach of warranty of
habitability cause of action, alleges that Blumenfeld's adult son, Max, moved into the Apartment
some time after his adult brother Lucas vacated it, and that Max continues to live there. In
addition, the amended 2017 complaint alleges that, on August 9, 2017, DOB gained access to and
inspected the three cellar units, and served Stable with a notice of violation, which indicated that
each cellar level had a full bathroom and was being used as living quarters, rather than as a
recreation room, as stated in the certificate of occupancy. Amended 2017 complaint, ¶ 114.