Simon & Son Upholstery, Inc. v. 601 West Associates
(Sup. Ct. N.Y. Cty. 8/27/03)
We represented: Plaintiff
Carol Edmead, J.S.C.
DECISION and ORDER This action concerns certain premises in a building known as the Starrett-Lehigh Building (the "Building"), which Simon and Son Upholstery, Inc. and its partner Studio 601 Inc. ("plaintiffs") leased from defendant, 601 West Associates, LLC ("601 West") (owner) and its managing agent, Harry Skydell ("Skydell") (collectively, "defendants").
As directed by this Court's May 12, 2003 order, plaintiffs move (1) to submit an offer of proof and caselaw as to the viability of their claim under New York General Business Law § 340, also known as the Donnelly Act (hereinafter "Donnelly Act") and (2) for leave to amend the complaint, among other things, to identify and name the co-conspirators who conspired with defendants to restrain competition.
Also as directed, defendants move 1 to dismiss plaintiffs' claim for punitive damages based on the alleged breach of contract and intentional tort. Defendants also seek to preclude plaintiffs from introducing acts aimed at the other tenants in support of their punitive damage claims.2
Plaintiffs' Motion in Support of Donnelly Act Claim:
It is undisputed that in order to prove a violation of the Donnelly Act, a plaintiff must show that the defendants entered into a contract, agreement, or arrangement (which may be inferred from the conduct of defendants) that had the tendency to restrain competition, and that defendants acted to carry out same. In this regard, plaintiffs must (a) identify the relevant product and geographic market, (b) describe the nature and effects of the purported conspiracy, (c) allege how the economic impact of the conspiracy restrains trade in the market in question and (d) show a conspiracy or reciprocal relationship between two or more entities who are named (The Great Atlantic & Pacific Tea Co. Inc. v. Town of East Hampton, 997 FSupp 340 [EDNY 1998]; Creative Trading Co., Inc. v. Larkin-Pluznick Inc., 136 AD2d 461 [1st Dept 1988]). Plaintiffs contend that their Donnelly Act claim is sufficiently supported by the following facts:3
In identifying the relevant product market, plaintiffs claim that as of December 1997, plaintiffs operated a commercial photography studio ("photo studio") for fashion and advertising related industries in the New York metropolitan area.
In describing the nature and effects of the purported conspiracy, plaintiffs claim that when defendants acquired the Building in August 1998, they advertised the Building as a Media Arts Center. Although defendants were aware that the prior building owner consented to plaintiffs' operation of the photo studio,45 These Favored Competitor Tenants are identified as Tomar Studios, Inc. ("Tomar"), Jack Productions, Inc., Boylan Studios, and Peter White Studios.
Plaintiffs further allege that
Upon information and belief, Defendants conspired and entered into reciprocal agreements [i.e., lease modifications containing a non-compete clause] with Tomar Studios, Jack Productions, Peter White Studios, and Boylan Studios whereby other competitor studios/tenants, like Plaintiffs, who had not reached agreement on lease terms with Defendants, including concerning rent, would be shut down and barred from conducting commercial photography in the Building.
In furtherance of the conspiracy and reciprocal agreements noted above, the defendants shut off essential freight elevator service and signage to plaintiffs' studio, which prevented plaintiffs from operating their business between October 1998 and January 2000. In keeping with an earlier threat to ruin plaintiffs' business, defendants denied plaintiffs' clients access to the freight elevator to plaintiffs' premises, and diverted plaintiffs' clients to at least one of the Favored Competitor Tenants.6
According to plaintiffs, defendants' denial of freight service and signage7 make it impossible for plaintiffs to operate their photo studio business in the New York Metropolitan area. But for defendants' acts, plaintiffs' clients would have continued to use plaintiffs' photo studio. Defendants and their co-conspirators have removed plaintiffs as a competitor in the market.
Plaintiffs further allege that the economic impact of the conspiracy restrains trade in the subject market because plaintiffs are barred from operating their photo studio throughout the New York Metropolitan area, and plaintiffs' clients are "compelled to use other competitor studios in the Building, one of the few, premier Media Arts Centers in Manhattan, at higher rates."
Further, there are reciprocal relationships between defendants and Favored Competitor Tenants, and between defendants and plaintiffs' clients, on whom defendants exerted pressure to discontinue their business with plaintiffs.
In support of amending the complaint to add co-conspirators, plaintiffs argue that defendants will not suffer any prejudice by such amendment, given that, among other things, (1) three of the coconspirators sought to be named were referred to in the second amended complaint, dated March 10, 1999 and (2) the names of the co-conspirators, Tomar Studios and Tack Studios, were previously identified in defendants' bill of particulars.
In opposition, defendants argue that the facts are insufficient to support plaintiffs' Donnelly Act claim.
Defendants contend that the only market as alleged in this action is the Building, and the Building cannot constitute a relevant geographic market.
Further, the nature and effect of the alleged conspiracy as described do not constitute antitrust conduct. Specifically, the deposition testimony upon which plaintiffs rely does not support their claim that defendants diverted plaintiffs' clients to the Favored Competitor Tenants. In any event, the alleged diversion of clients was not directed at competition in a relevant market, but at plaintiffs only. Also, leases limiting the number of photo studios in the Building do not violate the antitrust statutes. Defendants also point out that a Donnelly Act violation can only occur when the conspirators are in competition with each other, and here, defendants are not plaintiffs' competitors. Further, there is no showing that defendants herein limited or restricted which supplier the tenants of the Building may use, or compelled any client to use a particular studio.
Defendants argue that plaintiffs also failed to sufficiently allege how the economic impact of defendants' conduct restrains trade. Plaintiffs' mere showing of injury to themselves and not to any other tenant or single competitor fails to demonstrate injury to competition or the competitive process itself as a whole, as required. By alleging that the Favored Competitor Tenants were free to conduct their business, and in the absence of any market analysis or study, plaintiffs cannot claim that defendants' conduct affected the market.
Defendants further argue that plaintiffs failed to allege any conspiracy or reciprocal relationship between the defendants and any of the Favored Competitor Tenants. Also, since plaintiffs' clients were allegedly pressured to discontinue their dealings with plaintiffs, it cannot be said that the relation between such clients and defendants was reciprocal.
In reply, plaintiffs add that they have amply pled the nature of the conspiracy as well as its participants. Plaintiffs also point out that the other tenant competitors in the building who did not reach an agreement on lease terms with defendants were shut down and barred from conducting commercial photography in the Building .8 In addition, the fact that defendants are not plaintiffs' competitors is immaterial. Further, plaintiffs argue that they are entitled to replead and identify the co-conspirators with whom defendants entered into reciprocal relationships to restrain competition.
Analysis of Plaintiffs' Donnelly Act Claim and Leave to Amend Pleadings:
Affording the pleadings a liberal construction, accepting as true the facts alleged in the complaints, and according the plaintiff the benefit of every possible inference, the Court finds that the facts, as alleged, fail to establish the requirements in order to maintain a Donnelly Act claim.
Plaintiffs have not sufficiently alleged a relevant geographic market for purposes of the Donnelly Act. A single building cannot constitute a relevant geographic market under the Donnelly Act (see Shephard Indus., Inc. v. 135 East 57th Street, LLC, 1999 U.S. Dist. LOUS 14431 [SDNY 1991)[plaintiff's definition of the geographic market at issue – 'the Building' – is patently underinclusive]). There are no factual allegations that defendants' conduct concerned any photo studio businesses in any area outside the Building, or that plaintiffs were eliminated from maintaining a photo studio business in any area other than the Building. The strategic insertion of the words "New York Metropolitan area" does not alter the reality that all of defendants' tortious conduct occurred in the Building where plaintiffs maintain their photo studio business. Thus, plaintiffs have not identified a relevant geographic market under the Donnelly Act.
Plaintiffs' general claim that defendants' tortious conduct impacted plaintiffs' clients in the fashion and advertising industry in the New York Metropolitan area, alone, is conclusory, unsubstantiated, and insufficient. Plaintiffs' circuitous argument that by foreclosing freight elevator access to plaintiffs, their clients are forced to use other studios in the Building and are thus affected in the New York Metropolitan area sails like a rudderless ship.
Although the failure to sufficiently allege a geographic market is fatal to plaintiffs' Donnelly Act claim, and the court need not reach the merits of the parties' remaining arguments, the Court also finds that the plaintiffs failed to adequately allege how the economic impact of the alleged conspiracy restrains trade in the market or the existence of a conspiracy.
Plaintiffs failed to adequately allege how the economic impact of the conspiracy is to restrain trade in the market in question. It is undisputed that there were several other photo studio businesses in the Building. Plaintiffs' complaint amounts to an allegation that they have been put out of business. Plaintiffs' claim that they are barred from conducting their photo studio business in the Building, and that plaintiffs' clients are forced to pay higher rates in the Building fails to support their allegation that defendants' conduct restrained trade in the market (see Chow v. Union Central Life Ins. Co., 457 FSupp 1303 [BDNY 1978][plaintiff insurance agent failed to specifically allege anti-competitive effects in the insurance industry in Chinatown flowing from her termination, as she merely alleged that she personally was put out of business]; Watts v. Clark Assoc. Fun. Home, Inc., 234 AD2d 538 [2nd Dept 1996][where plaintiff alleged that he was denied an economic interest in one of few funeral parlors businesses in Westchester, plaintiff failed to show how economic impact of alleged conspiracy restrained trade in the market]). Additionally, assuming that the New York Metropolitan area constituted the relevant geographic market, plaintiffs have not alleged that there are no other photo studio businesses in the New York Metropolitan area.
Antitrust laws are concerned with acts that harm "competition, not competitors" (Apex Oil Co. v. DiMauro, 713 FSupp 587 [1989], quoting Brunswick Corp. v. Pueblo Bowl-O-that Inc., 429 US 477 [19771). Therefore, behavior which hurts or even destroys an individual competitor is not illegal under anti-trust laws unless it also adversely affects competition.
Furthermore, other than plaintiffs' conclusory mention of "conspiracy" and "reciprocal agreements," there are no factual allegations to support the existence of a conspiracy. According to the amended complaints, the denial of freight service and signage, and the diversions of plaintiffs' clients to the Favored Competitor Tenants were acts performed solely by defendants as a result of the alleged conspiracy and the reciprocal agreements [i.e., lease modifications containing a non-compete clause] to shut down plaintiffs' business.
However, plaintiffs cannot rely on the lease modification between Tomar and defendant 601 West to support any claim that a conspiracy existed between defendants and Tomar.
The modification lease states in pertinent part that
Landlord covenants and agrees that after May 1, 1999 and for as long as tenant [Tomar] maintains its good standing pursuant to the terms of this lease and is not in breach thereof, Landlord shall not let space in the building to any more than three new tenants whose primary use is photographic studio and who are in direct competition with Tenant, with the exception of replacing tenants that vacate the building with new tenants that will not occupy more aggregate space than the total space vacated (emphasis supplied).
This agreement does not mention plaintiff directly or indirectly, and does not reflect any intent by Tomar to "shut down" or eliminate plaintiffs as a competitor. Instead, such terms merely limit the number of new photo studio businesses defendants may lease to three, and does not affect, eliminate, or impact any competitor tenant already in existence at the time the lease commences. Such restrictive covenants in leases are proper (see Weiss v. Maidman, 308 NY 840 [1955]; Nicholas Gray & Co., Ltd. v. Stahl, 76 Ab2d 773 [1st Dept 1980]).
Nor does the letter from Tomar to defendants support plaintiffs' allegation of an agreement to "shut down" plaintiffs' photo studio business. Such letter indicates that when Tomar entered into the modification agreement, plaintiffs "[were] not open at that time." Such letter belies any claim that Tomar conspired with defendants to shut down plaintiffs' business futuristically, as Tomar was evidently under the impression that plaintiffs were already out of business. The letter does not demonstrate that plaintiffs' studio business was contemplated by Tomar at the time Tomar entered into the modification agreement.
Finally, the letter from a Mr. Schwalbach of Jack Studios to defendants, dated March 27, 2001, also fails to support the existence of any conspiracy. The letter indicates that defendants "assured [Schwalbach] that [defendants] would not be renting space to any one who would be competing with [Schwalbach]" and that Schwalbach was "very upset that Mark Chianti is engaging in Studio 601 on 16th floor, a competitive business. . . ." Mr. Schwalbach requested that defendants keep their "agreement with" him, as he has "kept [his] agreement with [defendants]." However, the letter does not establish an agreement or arrangement to destroy plaintiffs' business. At best, it shows that defendants possibly breached a non-compete agreement with Jack Studios.
The Court observes that defendants' alleged interference with plaintiffs' freight elevator service began between October 1998 and January 1999, prior to the alleged lease modifications with the Favored Competitor Tenants. Thus, plaintiffs' allegations indicate that defendants' interference with plaintiffs' freight elevator service was a product of a unilateral act by defendants that may have inured to the benefit of the alleged co-conspirators, and not a product of a conspiracy or reciprocal arrangements.
With respect to plaintiffs' motion to amend the second amended complaint, such request is denied, in part. It is well established that leave to amend pleadings shall be "freely given" at any time unless the proposed amendment prejudices or surprises the opposing party, is palpably insufficient as a matter of law, or is totally devoid of merit (see CPLR ?3025 [b]: Crimmins Contr. Co. v. City of New York, 74 NY2d 166,170 [1989]; Konrad v. 136 East 64th Street Corp., 246 AD2d 324 [1st Dept 1998]). To the extent that the proposed third-amended complaint merely adds the identity of additional co-conspirators, and does not affect the deficiencies noted above, the Court denies plaintiffs' request to amend the second amended complaint in this regard, However, to the extent the proposed amended complaint seeks to set forth additional tortuous conduct of defendants, i.e., denial of signage, which may be alleged in support of plaintiffs' remaining claims, such amendment is warranted.
Defendants' Motion to Dismiss Claims for Punitive Damages
With regard to punitive damages for breach of contract claims, defendants contend that there are no "additional special allegations" involving fraud directed toward the public generally or allegations of high moral turpitude. Additionally, punitive damages are not available in this case as there are no allegations that such are necessary to deter defendants and others like them from engaging in conduct that may be characterized as gross and morally reprehensible and of wanton dishonesty as to imply a "criminal indifference to civil obligations." Furthermore, plaintiffs failed to make an "extraordinary showing of a disingenuous or dishonest failure by defendant to carry out a contract."
With regard to punitive damages for intentional torts, defendants argue that the allegations fail to establish that they (1) acted with a "criminal indifference to civil obligations, circumstances of aggravation or outrage, such as spite or 'malice' or a fraudulent or evil motive on the part of the defendants or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful and wanton, and (2) that the tortuous conduct was "directed at the public generally."
Defendants claim that courts have not awarded punitive damages for the denial of a freight elevator service. Defendants also claim that their conduct does not warrant relief for punitive damages, given that (1) they reasonably relied upon the Appellate Division's repeated refusals to grant injunctive relief when enforcing their right to deny freight elevator service; (2) the first actual refusal of elevator service occurred on January 15, 1999, after two refusals to grant Plaintiff preliminary injunctive relief; (3) they consulted with the attorney, leasing agent and building manager of the prior owner of the Building, who stated that the use clause of the lease was never changed and that plaintiffs were never given the right to operate a photography studio; and (4) plaintiffs' use of the Premises was improper, and therefore, defendants had valid reasons to be concerned about plaintiffs' conduct. Defendants further contend that since caselaw prohibits courts from considering the alleged improper conduct against other parties, the alleged improper conduct against other tenants in the Building is immaterial and irrelevant to a determination of punitive damages.
In opposition, plaintiffs contend that regarding punitive damages for breach of contract, New York case law differs as to whether the public aim element is an additional element, or an alternative to proof of conduct which is morally reprehensible and/or indicative of wanton dishonesty. In any event, plaintiffs argue that the use of punitive damages to serve the public good as a deterrence against similar actions in the future satisfies the public aim element.
With regard to punitive damages for intentional torts, plaintiffs argue that they must merely show that the wrong "is aggravated by evil or a wrongful motive or that there was willful and intentional misdoing, or a reckless indifference equivalent thereto. Plaintiffs maintain that there is no requirement the harm complained of be "aimed at the public generally," provided that the "very high threshold of moral culpability is satisfied."
Plaintiffs further argue that defendants' arguments concerning their state of mind regarding denial of freight elevator services are without merit. Alternatively, plaintiffs contend that whether defendants' denial of freight elevator service was motivated by malice or a fraudulent or evil motive, or with "such a conscious and deliberate disregard of the interests of others that the conduct may be called willful and wanton," is a determination that should be made by the trier of fact.
In reply, defendants argue that plaintiffs improperly rely on state and federal decisions that (a) predate the seminal Court of Appeals decision on punitive damages in breach of contract cases; (b) are considered aberrational; and (c) are questioned by other courts. Furthermore, the award of punitive damages in a tort action is a matter of degree and interpretation of defendants' subjective motives, both of which are appropriately decided by the trier of fact.
Analysis of Plaintiffs' Punitive Damages Claims
The most recent and authoritative Court of Appeals decision, Rocanova v. Equitable Life Assurance Society of the United States (83 NX2d 603 [1994]), defined the conduct necessary to sustain a punitive damages claim in the context of breach of contract involving fraud: "However, where the breach of contract also involves a fraud evincing a 'high degree of moral turpitude' and demonstrating such 'wanton dishonesty as to imply a criminal indifference to civil obligations', punitive damages are recoverable if the conduct was 'aimed at the public generally.' "Although cases9 have permitted awards of punitive damages without tortious conduct directed at the general public, they do not accurately express New York law in view of the most recent statements in Rocanova (see New York Univ. v. Continental Ins. Co. 87 NY2d 30S, 316 [1995] citing with approval Rocanova; see also, Best Payphones v. Empire State Payphone Assn., 272 AD2d 139 [1st Dept 2000]).
With respect to punitive damages recoverable for intentional torts, the Court of Appeals held in Walker v. Sheldon (10 NY2d 401 [1961]) that punitive damages could be awarded for fraud when the relevant conduct involved "gross, wanton or willful fraud, dishonesty, or malicious wrongdoing as to involve a high degree of moral culpability." However, the conduct could not have merely been "an isolated incident" but "aimed at the public generally" (id. at 405).
There is some indication that the Court of Appeals relaxed the "public harm" requirement referred to in Walker for proving punitive damages in cases of intentional torts such as fraud and deceit (see Giblin v. Murphy (73 NY2d 769 [1988][" We [cannot] accept defendant's argument that the punitive damages award must be overturned because there was no harm aimed at the public generally. Punitive damages are allowable in tort cases such as this so long as the very high threshold of moral culpability is satisfied"]; Borkowski v. Borkowski (39 NY2d 982, 983 [1976] ["[i]t is not essential … that punitive damages be allowed in a fraud case only where the acts had been aimed at the public generally"]). However, the Court notes that both Giblin and Borkowski were pure fraud cases and did not involve fraud in connection with a breach of contract as did the recent decision in Rocanova (supra) (see also Steinhardt Group Inc. v. Citicorp, 272 AD2d 255 [1st Dept 2000] [in action arising from agreement between bank and corporate plaintiff, the absence of an allegation of egregious tort directed at the public at large warranted dismissal of punitive damages claims arising from fraud claims, as case involved only a private transaction]). Thus, "punitive damages are available in a tort action where the wrongdoing is intentional or deliberate, has circumstances of aggravation or outrage, has a fraudulent or evil motive, or is in such conscious disregard of the rights of another that it is deemed willful and wanton" (Swersky v. Dreyer and Traub, 219 AD2d 321, 328 [1st Dept 1996] citing Prozeralik v. Capital Cities Communications, 82 NY2d 466 [1993]).
In sum, to the extent that the Court of Appeals no longer requires conduct aimed at the public in tort cases, there is no indication that this requirement has been dispensed with in breach of contract cases (see Purdy v. Consumers Distrib. Co., Ltd., 648 FSupp 980 [1986] [finding that punitive damages were not available in absence of harm aimed at the public where breach of employment contract was sole claim]; Sardanis v. Sumitomo Corp., 279 AD2d 225 [1st Dept 2001][stating punitive damages in a tort action is viable where the alleged wrongdoing has been intentional and deliberate … and that defendants' conduct also met higher standard, generally applied in contract cases, "where the wrongful pattern of conduct is directed at the public in general"]; see also, Don Buchwald & Assn., Inc. v. Rich, 281 AD2d 329 [ 1st Dept 2001] ["limitation of an award for punitive damages to conduct directed at the general public applies only in breach of contract cases, not in tort cases for breach of fiduciary duty"]; Sherry Assn. v. Sherry-Netherland, Inc., 273 AD2d 14, 15 [1st Dept 2000] [same]).
Here, defendants' failure to provide freight elevator service, and possible denial of signage arguably caused plaintiffs' photo studio business serious harm since such services were essential to plaintiffs' business. However, even assuming in plaintiffs' favor that defendants' conduct constituted a high degree of moral turpitude, the alleged conduct was not directed at the public at large. There are no allegations that defendants' conduct was part of a pattern of similar conduct directed at the public generally. Further, the bald allegation that defendants and the Favored Competitor Tenants conspired to "shut down" the photo studio businesses of other tenants who had not reached new lease agreements with defendants, alone, is insufficient to support a claim that there was a scheme against the general public. Therefore, plaintiffs' allegations do not support its claim for punitive damages arising from an alleged breach of contract (see American Transit Ins. Co. v. Associated Intl. Ins. Co., 261 AD2d 251 [1st Dept 1999] [where the underlying wrongful conduct was focused upon plaintiff and not aimed systematically at the public generally, insured could not recover punitive damages arising from breach of contract]).
However, punitive damages arising from plaintiffs' remaining tort claims, including tortious interference with contractual and business relations, may not be precluded as a matter of law. The motive of defendants is both a necessary element of the cause of action to recover damages for tortious interference and a basis, i.e., intentional or deliberate wrongdoing, or conscious act that willfully and wantonly disregards the rights of another, for awarding punitive damages (Catinella v. Mel Weitx Supermarkets, Inc., 286 AD2d 361 [2nd Dept 2001]).
Based on the foregoing, it is hereby
ORDERED that plaintiffs' motion in support of their fifth cause of action based on the Donnelly Act, New York General Business Law ? 340, is denied and the fifth cause of action is dismissed; and it is further
ORDERED that plaintiffs' motion to amend the second-amended complaint is granted to the limited extent that plaintiffs may allege a denial of signage in support of their remaining claims; and it is further
ORDERED that defendants' motion to dismiss the seventh cause of action for constructive eviction is granted, without opposition; and it is further
ORDERED that defendants' motion to dismiss plaintiffs' claim for punitive damages is granted in part, to the extent that plaintiffs' claim for punitive damages arising from the alleged breach of contract is dismissed; and it is further
ORDERED that defendants' motion to preclude plaintiffs from introducing acts aimed at the other tenants in support of their punitive damage claims is granted.
The parties shall appear on October 14, 2003, 9:30 a.m. to select a jury for resolution of the third and fourth causes of action for tortious interference with contractual and business relations, respectively, the sixth cause of action for actual eviction, the eighth and ninth causes of actions for breach of contract, and the tenth cause of action for forcible ejectment. This constitutes the decision and order of the court.10
Dated: August 27, 2003
FOOTNOTES
1Defendants also move to dismiss plaintiffs' constructive eviction claim. Plaintiffs do not oppose such relief.
2 Plaintiffs do not address this issue in their opposition papers.
3f These facts are garnered from plaintiffs' affirmation in support, and the second amended complaint. The proposed third-amended complaint mirrors the second amended complaint, except for the allegations regarding defendants' denial of signage and the identity of additional co-conspirators.
4In support, plaintiffs submit an order (App. Div., January 25, 2000), in which the First Department states " … we find that the prior landlord had consented to the use of the part of the premises for a photography studio, and since the record indicates that the new landlord, 601 West Associates, was aware of the ensuing partial conversion…"
5Plaintiffs submit a lease modification agreement between Tomar Studios, Inc. and defendant 601 West.
6In support, plaintiffs submit, among other things, a letter from a client, which indicates that a member of defendants' building maintenance staff asserted that commercial shooting at plaintiffs' premises was prohibited, and that defendants found another location for the client to shoot the commercial. Plaintiffs also submit letters addressed to the defendants from two of the Favored Competitor Tenants, dated March and April 2001, complaining that defendants were violating their "no compete" agreement by permitting plaintiffs to operate their photo business.
7Plaintiffs point out that the Court ruled from the bench that signage would be a proper issue for damages at trial.
8The Court notes that plaintiffs have failed to substantiate this claim with any factual detail.
9Cf.TVT Records v. The Island Def Jam Music Group, 262 FSupp2d 188 [SDNY 2003] ["absent conduct directed at the public in general, punitive damages may be available in a breach of contract claim where the plaintiff establishes a sufficiently high degree of bad faith by the defendant evincing disingenuous or dishonest failure to carry out contractual obligations, thus frustrating the plaintiff's rights to an aggravated extent, particularly where bad faith is apparent at or near the outset of the transaction and where the breached obligations are unambiguous]; Aero Garage Corp. v. Hirschfeld, 185 AD2d 775 [1st Dept 1982]; Minjak v. Randolph, 140 AD2d 245 [1st Dept 1988]; Williamson, Pickett, Gross, Inc. v. Hirschfeld, 92 AD2d 289 [1st Dept 1983].
10 to Special thanks to H. Benjamin Perez, 2nd year student of Benjamin N. Cardozo School of Law, and Timothy Lynch, 2nd year student of Fordham University School of Law, for their assistance with this decision.