20 Pine St. Homeowners Ass'n v. 20 Pine St. LLC

• Decision Date: 24 September 2013
• Citation: 109 A.D.3d 733,971 N.Y.S.2d 289,2013 N.Y. Slip Op. 05962
• Parties: The 20 PINE STREET HOMEOWNERS ASSOCIATION, et al., Plaintiffs–Appellants, v. 20 PINE STREET LLC, et al., Defendants–Respondents, Giorgio Armani Corporation, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 733

971 N.Y.S.2d 289

2013 N.Y. Slip Op. 05962

The 20 PINE STREET HOMEOWNERS ASSOCIATION, et al., Plaintiffs–Appellants,

v. 20 PINE STREET LLC, et al., Defendants–Respondents,Giorgio Armani Corporation, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

Sept. 24, 2013.

Mavronicolas Mueller & Dee LLP, New York (Peter C. Dee of counsel), for appellants.

Goulston & Storrs, P.C., New York (Jonathan A. Grippo of counsel), for respondents.

FRIEDMAN, J.P., FREEDMAN, RICHTER, FEINMAN, GISCHE, JJ.

Order, Supreme Court, New York County (Paul Wooten, J.), entered May 16, 2012, which, insofar as appealed from as limited by the briefs, granted, pursuant to CPLR 3211(c), summary judgment dismissing the first and seventh causes of action for breach of contract against defendants-respondents Jeshayau Boymelgreen a/k/a Shaya Boymelgreen, Pinchas Cohen, Richard Marin, Tamir Kazaz, 20 Pine Street Managers, LLC, and AI Properties and Developments (USA) Corp., Africa Israel Investments International 1997 Limited, and Africa Israel Investments Limited (Sponsor's Principals), the fifth, sixth, thirteenth and seventeenth causes of action against defendant-respondent 20 Pine Street LLC (Sponsor) and Sponsor's Principals, and the nineteenth cause of action against defendants-respondents Richard Marin, Jim Pershing, Ari Schwebel, Andy Ashwal, Gennyene Brugger, Damien Stein, Andrew Faulds, Gabe Rubin, Rena Batash, Getzy Felig, Paz Kaspi, Lori Levine, Gal Back, Liron Hen–Brenner, Jack Jemal, Joseph Damanti and Adam Bienelpe (Board Members), unanimously modified, on the law, to delete the provision converting defendants' CPLR 3211(a) motions to dismiss into CPLR 3211(c) motions for summary judgment, and to substitute for the provision granting summary judgment a provision granting the motions pursuant to CPLR 3211(a), and otherwise affirmed, without costs.

The trial court's “Interim Order,” which notified the parties that the court “may treat all pending motions to dismiss as motions for summary judgment conversion pending consideration of support or opposition by the parties” and invited the parties to submit papers “in support or opposition,” did not provide adequate notice to the parties of the Court's intention to convert the motions pursuant to CPLR 3211(c). Given this, as well as the fact that none of the exceptions to the notice requirement were applicable ( see Wiesen v. New York Univ., 304 A.D.2d 459, 460, 758 N.Y.S.2d 51 [1st Dept. 2003] ), the court erred in converting the motions into summary judgment motions. Nonetheless, applying the standards governing a motion to dismiss pursuant to CPLR 3211, dismissal of the challenged claims was appropriate.

The court properly dismissed the sixth cause of action alleging that Sponsor breached a statutory or common law implied housing merchant warranty. In Fumarelli v. Marsam Dev., 92 N.Y.2d 298, 680 N.Y.S.2d 440, 703 N.E.2d 251 [1998], the Court of Appeals held that the codification of General Business Law article 36–B, pursuant to which a builder-vendor may exclude or modify all express warranties provided that the purchase agreement contains a limited warranty in accordance with the provisions of General Business Law § 777–b, has superseded the common law implied housing merchant warranty previously recognized in Caceci v. Di Canio Constr. Corp., 72 N.Y.2d 52, 530 N.Y.S.2d 771, 526 N.E.2d 266 [1988]. The statutory housing merchant warranty scheme codified under Article 36–B applies only to buildings less than five stories, and not to the condominium at issue here, and we find that the ruling in Fumarelli abrogates whatever common law implied housing merchant warranty, if any, that may have existed with respect to buildings taller than five stories prior to the statutory codification.

The court also properly dismissed the fifth cause of action for damages in connection with Sponsor's alleged breach of express warranties to correct construction defects, as the offering plan here included a valid and specific limited warranty in accordance with the provisions of General Business Law § 777–b, which, as provided in General Business Law article 36–B, entitled Sponsor to exclude or modify all express warranties,...