Majority
Order, Supreme Court, New York County (Ellen Gesmer, J.), entered July 11, 2013, which, to the
Defendant was not entitled to dismissal of plaintiffs second cause of action for breach of the implied covenant of good faith and fair dealing. The allegations in the complaint, as bolstered by plaintiffs affidavit set forth actionable claims at this pleading stage (see Rovello v Orofino Realty Co., 40 NY2d 633 , 635-636 [1976]).
Although the separation agreement afforded defendant the sole responsibility of selecting a suitable apartment, the implied covenant of good faith and fair dealing would prevent him from arbitrarily refusing to make such selection (see Dalton v Educational Testing Serv., 87 NY2d 384 , 389 [1995]; Peacock v Herald Sq. Loft Corp., 67 AD3d 442 , 443 [1st Dept 2009]). The issue of whether defendant acted arbitrarily or unreasonably in refusing to select a suitable apartment presents questions of fact that cannot be resolved on this motion to dismiss (see Peacock, 67 AD3d at 443 ).
We have considered defendant’s remaining contentions and find them unavailing.
Concur — Mazzarelli, J.P., DeGrasse, Richter and Feinman, JJ.
Cases cited
- Rovello v. Orofino Realty Co. 40 NY2d 633 at 635-636 p. 575
- Dalton v. Educational Testing Service 87 NY2d 384 at 389 p. 575
- Peacock v. Herald Square Loft Corp. 67 AD3d 442 at 443 p. 575