Glynn v. 177 West 26th St. Realty Corp.

Defendant established its entitlement to an ejectment and to the dismissal of the breach of warranty of habitability claim through affidavits, leases, and notices terminating the tenancies. Plaintiff failed to raise a triable issue of fact as to Unit 501.

The cause of action for restitution for the improvements plaintiff made to the units must be dismissed because the leases, which contain merger clauses, provide that any improvements to the units will become the landlord’s property (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382 , 388 [1987]).

Plaintiff’s motion for leave to amend the complaint to add a cause of action for constructive trust must be denied because plaintiff failed to show that the parties’ business transaction gave rise to a confidential or fiduciary relationship between them (see Sharp v Kosmalski, 40 NY2d 119 , 121 [1976]). Concur — Friedman, J.P, Moskowitz, Freedman, Richter and Abdus-Salaam, JJ.