Kleanthi Xenopoulos, Appellant, v. Board of Managers of the 150 East 56th Street Condominium et al., Defendants, and Helmsley-Spear Conversion Sales Corporation et al., Respondents

Kleanthi Xenopoulos, Appellant, v Board of Managers of the 150 East 56th Street Condominium et al., Defendants, and Helmsley-Spear Conversion Sales Corporation et al., Respondents. [633 NYS2d 790] [MAJORITY] —Judgment, Supreme Court, New York County (Walter Schackman, J.), entered June 16, 1994, which, insofar as appealed from, dismissed the complaint as against defendants Helmsley-Spear Conversion Sales Corporation, Helmsley-Spear Inc., and Milton Sherman, unanimously affirmed, with costs. The trial court properly granted defendants’ motion to dismiss at the conclusion of plaintiffs case since plaintiff failed to establish a prima facie case of either fraud or breach of contract (see, Rhabb v New York City Hous. Auth., 41 NY2d 200, 202). The use of the unit purchased by plaintiff is governed by the condominium offering plan which specifically permitted only residential or professional office use. Plaintiff could not justifiably rely on alleged oral representations to the contrary, that the premises could be used for commercial purposes. Nor did the evidence establish that defendants agreed to take any steps to legalize the commercial use of plaintiffs unit. The complaint was also properly dismissed because plaintiff failed to offer sufficient evidence of damages, omitting any evidence as to the difference between the consideration paid and the value of the unit as a professional unit. Concur—Murphy, P. J., Sullivan, Ross, Williams and Tom, JJ.