517 Union St. Assocs. LLC v. Town Homes of Union Square LLC

• Decision Date: 17 October 2019
• Docket Number: 527218
• Citation: 176 A.D.3d 1350,111 N.Y.S.3d 715
• Parties: 517 UNION ST. ASSOCIATES LLC et al., Plaintiffs, v. TOWN HOMES OF UNION SQUARE LLC, Defendant and Third–Party Plaintiff—Respondent, et al., Defendants; J. Luke Construction Co., Inc., Third–Party Defendant—Appellant.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 1350

111 N.Y.S.3d 715

517 UNION ST. ASSOCIATES LLC et al., Plaintiffs,

v.TOWN HOMES OF UNION SQUARE LLC, Defendant

and

Third–Party Plaintiff—Respondent, et al., Defendants;

J. Luke Construction Co., Inc., Third–Party Defendant—Appellant.

527218

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

Calendar Date: September 10, 2019

Decided and Entered: October 17, 2019

Goldberg Segalla LLP, Albany (James F. Faucher II of counsel), for third-party defendant-appellant.

Burke, Scolamiero & Hurd, LLP, Albany (Steven V. DeBraccio of counsel), for defendant and third-partyplaintiff-respondent.

Before: Garry, P.J., Clark, Mulvey, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Devine, J. Appeal from an order of the Supreme Court(Caruso, J.), entered July 10, 2018 in Schenectady County, which, upon renewal, among other things, partially denied third-party defendant's motion for summary judgment dismissing the third-party complaint.

As set forth in our prior decision ( 156 A.D.3d 1187, 68 N.Y.S.3d 173[2017] ), plaintiffs commenced this action to recover for damages purportedly caused by the diversion of water from property owned by defendantTown Homes of Union Square LLC onto their own property.Town Homes impleaded third-party defendant, J. Luke Construction Co., Inc., a contractor that had performed demolition and construction work on its property, asserting claims for negligence, contractual indemnification and/or contribution and breach of contract.Town Homes and its property manager, defendantMaddalone & Associates, Inc., moved for summary judgment dismissing the complaint, while J. Luke moved for summary judgment dismissing the third-party complaint.In 2017, Supreme Court granted the motion of Town Homes and Maddalone & Associates, Inc. and, having disposed of the primary action, granted J. Luke's motion as a consequence (156 A.D.3d at 1192, 68 N.Y.S.3d 173 ).

Upon appeal from the 2017 order, this Court reinstated two of plaintiffs' claims against Town Homes and Maddalone, which required revival of Town Homes' third-party complaint (156 A.D.3d at 1191–1192, 68 N.Y.S.3d 173 ).Motion practice ensued that included, in relevant part, a motion from J. Luke to renew its motion for summary judgment dismissing the third-party complaint.Supreme Court granted renewal and, upon renewal, granted summary judgment dismissing parts of the third-party complaint, leaving extant Town Homes' negligence and contribution claims.J. Luke appeals, arguing that it was entitled to summary judgment dismissing those claims as well.

Initially, our decision on the appeal from the 2017 order was a "new pronouncement of the law governing this case" that provided a valid ground for J. Luke to seek renewal of its summary judgment motion, and we perceive no abuse of discretion in Supreme Court granting that relief ( Spierer v. Bloomingdale's,59 A.D.3d 267, 267, 873 N.Y.S.2d 66[2009], lv denied13 N.Y.3d 713, 893 N.Y.S.2d 841, 921 N.E.2d 609[2009];seeCPLR 2221[e][2];Cioffi v. Target Corp.,150 A.D.3d 665, 667, 53 N.Y.S.3d 671[2017] ).We accordingly turn to the merits of the underlying summary judgment motion.

With regard to the first cause of action in the third-party complaint, we agree with J. Luke that it should have been dismissed.Town Homes denominated that claim as one for negligence, alleging that J. Luke deviated from accepted standards of care by failing to perform contracted-for demolition and construction work "in a good workmanlike manner."Supreme Court correctly categorized those assertions as a claim for negligent performance of contract; the problem is "that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated"( Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co.,70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190[1987];seeJohnson City Cent. School Dist. v. Fidelity & Deposit Co. of Md.,226 A.D.2d 990, 993, 641 N.Y.S.2d 426[1996] ).¹A failure to plead a cognizable claim would not warrant summary judgment if Town Homes subsequently made out a viable cause of action (seeAlvord & Swift v. Muller Constr. Co.,46 N.Y.2d 276, 279, 413 N.Y.S.2d 309, 385 N.E.2d 1238[1978];Village of Sharon Springs v. Barr,165 A.D.3d 1445, 1446, 86 N.Y.S.3d 244[2018] ).Town Homes never suggested that J. Luke owed it a duty of care independent from the contract, however, and confirmed in its opposition to J. Luke's motion that the issue was whether J. Luke rendered subpar performance under the contract.Accordingly, in the absence of any indication that J. Luke owed an independent duty to Town Homes arising "from circumstances extraneous to, and not constituting elements of, the contract"( Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co.,70 N.Y.2d at 389, 521 N.Y.S.2d 653, 516 N.E.2d 190;accordKyer v. Ravena–Coeymans–Selkirk Cent. Sch. Dist.,144 A.D.3d 1260, 1261, 41 N.Y.S.3d 584[2016] ), J. Luke was entitled to summary judgment dismissing the first cause of action (see431 Conklin Corp. v. Rice,181 A.D.2d 716, 717–718, 580 N.Y.S.2d 475[1992] ).

Town Homes' third-party contribution claim, in contrast, is premised upon J. Luke owing a duty of care to "plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries"( Eisman v. Village of E. Hills,149 A.D.3d 806, 808, 52 N.Y.S.3d 115[2017];seeCPLR 1401;Rosado v. Proctor & Schwartz,66 N.Y.2d 21, 23, 494 N.Y.S.2d 851, 484 N.E.2d 1354[1985] ).As we previously noted, questions of fact exist as to whether Town Homes is liable to plaintiffs for the water diversion ( 156 A.D.3d at 1191–1192, 68 N.Y.S.3d 173 ).J. Luke contends that it cannot similarly be held liable, as its work for Town Homes was done in compliance with "plans and specifications which [J. Luke] agreed to follow" and that...