memorandum is not probative on the relevant issues.
Finally, plaintiff's documentation concerning the May 28, 2008 leak, which was apparently
"caused when a speedy connector to a toilet broke" in either the unit, or another unit located
above the subject unit, is irrelevant. Issues raised concerning the property damage associated with
this water leak are not causally related to plaintiff's claims in this action.
For all of these reasons, the defendant is entitled to summary judgment dismissing the first
cause of action.
As for the fourth cause of action, for breach of the implied covenant of good faith and fair
dealing, the court rejects the defendant's argument that such a breach does not create an
independent cause of action. While this implied covenant does not create new duties under a
contract, such a claim can remain, although a breach of contract claim does not otherwise exist.
Richbell Information Services, Inc. v. Jupiter Partners, L.P., 309 AD2d 288, 302 (1st
Dept 2003). In such a situation, plaintiff must show that the defendant had exercised its
contractual right malevolently, for its own [*5]gain, as part of a
purposeful scheme designed to deprive the plaintiffs of the benefits of their contract. It follows,
however, that since plaintiff has failed to establish that the defendant acted in bad faith, that the
defendant is entitled to summary judgment dismissing this claim as well.
Accordingly, plaintiff's motion for summary judgment is denied. Defendant's motion for
summary judgment is granted in its entirety and the complaint is hereby severed and dismissed.
Conclusion
In accordance herewith, it is hereby:
ORDERED that plaintiff's motion for summary judgment is denied; and it is further