Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and oral argument on November 20, 2024, pursuant to CPLR § 3211(a)(7), the Decision and Order on Defendants' ("City") Motion to dismiss the Plaintiff's Amended Complaint is GRANTED in its entirety.

Plaintiff commenced the instant action by filing of summons and verified complaint on or [*2]about May 3, 2024.^[FN1] Plaintiff filed an amended summons and verified complaint on or about August 21, 2024.^[FN2] Plaintiff seeks damages for claims of breach of contract, breach of an implied covenant of good faith and fair dealing, and for tortious interference with a contract against Defendants.^[FN3] Plaintiff alleges that Defendant City breached a 2021 Settlement Agreement ("settlement agreement"),^[FN4] breached their implied duty of good faith and fair dealing, and that Defendant Kavanagh tortiously interfered with said agreement.^[FN5] The settlement agreement arose out of a prior lawsuit between Plaintiff and the City and the parties then memorialized an agreement that provided Defendant City would promote Plaintiff to Assistant Chief at the New York City Fire Department, pay Plaintiff agreed upon amounts of backpay and attorneys' fees, and would not assign Plaintiff to another position during the tenure of Fire Commissioner Daniel Nigro.^[FN6]

Defendant City filed its instant pre-answer dismissal motion on September 30, 2024.^[FN7] The City argues that the Plaintiff's complaint must be dismissed pursuant to CPLR § 3211(a)(7) because Plaintiff: fails to state a claim for breach of contract, fails to state a claim for breach of implied covenant of good faith and fair dealing, and fails to state a claim for tortious interference with a contract against Defendant Kavanagh.^[FN8] Defendants further argues that Plaintiff cannot recover punitive damages against Defendant the City of New York.^[FN9]

In opposition, Plaintiff firstly consents to the dismissal of his breach of contract and tortious interference with a contract claims.^[FN10] However, Plaintiff argues against the dismissal of his breach of the implied covenant claim, arguing that Defendants violated the spirit and intent of the 2021 Settlement Agreement, acted in bad faith, mischaracterized the Settlement Agreement, and his implied covenant claim is not duplicative of his breach of contract claim.^[FN11] In reply, Defendants argue that Plaintiff's claim for breach of the implied covenant of good faith [*3]and fair dealing must be dismissed because no reasonable person would understand that the agreement contained the implied promises claimed by Plaintiff.^[FN12] Furthermore, Defendants argue that Plaintiff's punitive damages claim must be dismissed as abandoned.^[FN13]

Dismissal pursuant to CPLR 3211(a)(7)

"When reviewing a defendant's motion to dismiss the complaint for failure to state a cause of action, a court must give the complaint a liberal construction, accept the allegations as true and provide plaintiffs with the benefit of every favorable inference." Cortlandt St. Recovery Corp. v. Bonderman, 31 NY3d 30. 38 (2018). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11 (2005). "Unlike a motion for summary judgment where the court searches the record and assesses the sufficiency of the parties' evidence, on a motion to dismiss the court merely examines the adequacy of the pleadings." Davis v. Boeheim, 24 NY3d 262 (2014). The "ultimate question is whether, accepting the allegations and affording these inferences, plaintiff can succeed upon any reasonable view of the facts stated." Perez v. Y & M Transportation Corp., 196 N.Y.S.3d 145 (2d Dept. 2023) (quoting Doe v. Bloomberg L.P., 36 NY3d 450 [2021]).

Plaintiff's breach of contract and tortious interference with a contract claims

As an initial matter, Plaintiff concedes to dismissal of his breach of contract and tortious interference with a contract claims,^[FN14] as these claims were previously dismissed in a separate action by this Court's Order dated August 21, 2024.^[FN15] Therefore, Defendant's motion is granted as to Plaintiff's claims of breach of contract and tortious interference with a contract and these claims are hereby dismissed.

Plaintiff's breach of implied covenant of good faith and fair dealing claim

"Implicit in every contract is a covenant of good faith and fair dealing which encompasses any promise that a reasonable promise would understand to be included." P.S. Fin., LLC v. Eureka Woodworks, Inc., 214 AD3d 1 (2d Dept. 2023) (quoting 25 Bay Terrace Assoc., L.P. v. Pub. Serv. Mut. Ins. Co., 144 AD3d 665 [2d Dept. 2016]). An implied covenant of good faith and fair dealing "is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the [*4]contract, even if the terms of the contract do not explicitly prohibit such conduct." Id. at 30. "No obligation may be implied that would be inconsistent with the other terms of the contractual relationship." Celauro v. 4C Foods Corp., 187 AD3d 836 (2d Dept. 2020). Furthermore, "a claim for breach of the implied covenant of good faith and fair dealing may not be used as a substitute for a nonviable claim of breach of contract." Smile Train, Inc. v. Ferris Consulting Corp., 117 AD3d 629 (1st Dept. 2014).

Here, Plaintiff failed to sufficiently allege that Defendants conduct prevented him from performing his obligations under the settlement agreement or deprived him of the right to receive benefits from said agreement. Singh v. T-Mobile, 232 AD3d 662 (2d Dept. 2024). Plaintiff alleges that the settlement agreement implicitly prohibited the City from placing him in a worse position or seeking opportunities to circumvent the agreement.^[FN16] However, these claims are inconsistent with the contract's explicit terms.^[FN17] See Celauro, 187 AD3d at 838-839. Furthermore, as Plaintiff's breach of contract claim has been dismissed, his implied covenant claim cannot stand in its place. See Smile Train, Inc., 117 AD3d at 630. Therefore, Plaintiff's claims of breach of the implied covenant of good faith and fair dealing are hereby dismissed.

Plaintiff's punitive damages claim

Punitive damages are not recoverable against municipalities. Krohn v. New York City Police Dept., 2 NY3d 329 (2004). Additionally, punitive damages for a breach of contract require "an extraordinary showing of a disingenuous or dishonest failure to carry out the contract." Spano v. Kings Park Cent. School Dist., 61 AD3d 666 (2d Dept. 2009) (quoting Gordon v. Nationwide Mut. Ins. Co., 30 NY2d 427 [1972]). Therefore, Plaintiff's punitive damages claim must be dismissed. See Spano, 61 AD3d at 671.

Therefore, for the aforementioned reasons, Defendants City's motion to dismiss is hereby granted in its entirety.

This constitutes the Decision and Order of the Court.