Bd. of Managers of 647 & 649 Place Condo. v. 647 & 649 Wash. Ave., LLC
| Decision Date | 05 October 2015 |
| Docket Number | No. 30288/2010.,30288/2010. |
| Citation | 26 N.Y.S.3d 723 (Table) |
| Parties | The BOARD OF MANAGERS OF 647 & 649 PLACE CONDOMINIUM suing on behalf of the UNIT OWNERS OF 647 & 649 WASHINGTON AVENUE CONDOMINIUM, Plaintiff, v. 647 & 649 WASHINGTON AVE., LLC; Haijar Elayvan; Double M Development LLC ; Munzer Elayyan; Van J. Brody Architects, P.C., Defendants. 647 & 649 Washington Ave., LLC; Haijar Elayvan; Double M Development LLC ; Munzer Elayyan, Third–Party Plaintiffs, v. Erin Construction and Development Co., Inc., Third–Party Defendant. |
| Court | New York Supreme Court |
Marcia E. Fokas, Esq., New York, NY, Attorney for Plaintiffs.
Menicucci Villa & Assoc., PLLC, Staten Island, NY, Welby, Brady & Greenblatt, LLP, White Plains, NY, Attorney for Defendants.
The following papers numbered 1 to 14 read herein:
| Papers | Numbered |
| Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed | 1–48–10 |
| Opposing Affidavits (Affirmations) | 12 |
| Reply Affidavits (Affirmations) | 713 |
| Affidavit (Affirmation) | |
| Memoranda of Law | 5–6–11–14 |
In this action by plaintiff the Board of Managers of 647 & 649 Place Condominium, suing on behalf of the unit owners of 647 & 649 Washington Avenue Condominium (plaintiff) against defendants 647 & 649 Washington Ave, LLC, Haijar Elayyan (Haijar), Double M Development, LLC, and Munzer Elayyan (Munzer) (collectively, the sponsor defendants) and Van J. Brody Architects, P.C. (Van J. Brody Architects), the sponsor defendants move, under motion sequence number five, for an order: (1) dismissing plaintiff's complaint against Munzer and Haijar, individually, pursuant to CPLR 3211(a)(1) and (a)(7), based upon the documentary evidence and for failure to state a cause of action, and (2) dismissing certain of plaintiff's causes of action against Double M Development, LLC and 647 & 649 Washington Ave, LLC, pursuant to CPLR 3211(a)(1) and (a)(7), based upon the documentary evidence and for failure to state a cause of action. Plaintiff cross-moves, under motion sequence number six, for an order: (1) amending the caption of this action, pursuant to CPLR 3025(b), to set forth the full name of plaintiff, and (2) granting summary judgment, pursuant to CPLR 3212, against 647 & 649 Washington Ave, LLC, Double M Development, LLC, Haijar, and Munzer for breach of contract and negligence in the amount of $578,200. Plaintiff's cross motion further seeks, in the event that its instant cross motion for summary judgment is denied, an order allowing it to amend its complaint, pursuant to CPLR 3025(b), to include causes of action for common-law fraud that are not solely dependent on the Martin Act and a cause of action against Double M Development, LLC for common charge arrears in the amount of $33,350, and (2) a default judgment in its favor against Van J. Brody Architects, pursuant to CPLR 3215, in the amount of $578,200 under its seventh, eighth, and ninth causes of action.
647 & 649 Washington Ave, LLC was the sponsor of a condominium project, and Haijar was the principal and a member/officer of 647 & 649 Washington Ave, LLC. On January 13, 2005, 647 & 649 Washington Ave, LLC, as the sponsor, issued an offering plan providing for the sale of 16 condominium units at a seven-floor condominium building to be newly constructed at premises located at 647 & 649 Washington Avenue, in Brooklyn, New York. 647 & 649 Washington Ave, LLC and Haijar retained Van J. Brody Architects, as the architect for the condominium project, to prepare the plans and specifications for the design and construction of the condominium. At the request of 647 & 649 Washington Ave, LLC and Haijar, Van J. Brody Architects prepared a report dated August 23, 2004 and revised on October 27, 2004, which described the condition of the condominium as it would exist upon completion of construction (the architect's report). The architect's report was incorporated and made a part of the offering plan.
647 & 649 Washington Ave, LLC and Haijar executed a certification of the offering plan dated March 18, 2004. This certification stated that the offering plan and the documents which amend the offering plan, among other things, did not omit any material fact, did not contain any untrue statement of material fact, and did not contain any fraud. Van J. Brody Architects executed a certification of the architect's report dated November 2, 2004. These certifications were incorporated and made a part of the offering plan.
The 647 & 649 Washington Avenue Condominium (the condominium) was established by a declaration duly filed in the office of the Register of the City of New York, Kings County, on October 11, 2007. 647 & 649 Washington Ave, LLC continues to own 6 of the 16 units.
647 & 649 Washington Ave, LLC conveyed the condominium to Double M Development, LLC, who is the successor sponsor, by a deed dated December 12, 2007. The fifth amendment of the offering plan, dated November 18, 2008, set forth that 647 & 649 Washington Ave, LLC had conveyed title to eight units to Double M Development, LLC, as the successor sponsor. This fifth amendment to the offering plan stated that Munzer was the sole principal of Double M Development, LLC. Munzer is also a member/officer of Double M Development, LLC. Double M Development, LLC and Munzer executed a certification dated September 13, 2008 with respect to the offering plan, which was incorporated and made a part of the offering plan. This certification, like the certification signed by 647 & 649 Washington Ave, LLC and Haijar, stated, among other things, that the offering plan and the documents which amend the offering plan, among other things, did not omit any material fact, did not contain any untrue statement of material fact, and did not contain any fraud.
The condominium building was built in 2007 through 2008. There are 16 residential units in the building. All of the units were offered for sale by the sponsor defendants for a total initial offering of $6,225,000. The unit owners purchased their units from 647 & 649 Washington Ave, LLC or from Double M Development, LLC pursuant to purchase agreements, which incorporated the offering plan and made the offering plan a part of the purchase agreements. A form purchase agreement was contained in part II of the offering plan.
647 & 649 Washington Ave, LLC and Double M Development, LLC started selling and closing on units in the building after the temporary certificate of occupancy was issued. A final certificate of occupancy was issued by the New York City Department of Buildings on March 6, 2008, which certified that the premises "conform[ed] substantially to the approved plans and specifications and to the requirements of all applicable laws, rules and regulations for the uses and occupancies specified." The unit owners signed purchase agreements, which were set forth in the offering plan.
According to Cathleen D. Caron, the president of plaintiff, who is also one of the original purchasers of a unit at the building, she and other unit owners have experienced water leaks through the windows and the roof. Plaintiff alleges that the condominium contains numerous construction defects, including exterior insulation and finish system (EIFS) improperly installed, windows improperly installed, a defective water pump, ventilation in the basement and bathrooms not properly operating, water infiltration in the ground floor apartments, terraces with water leaks which have inadequate flashing and drainage, a roof which fails to meet industry standards as to flashing and parapets, improperly installed heating, ventilating, and air conditioning (HVAC) units, inadequate insulation throughout the building, roof doors that are improperly installed or inadequate causing water infiltration and damage, an improperly installed security camera, faulty cable wiring, and missing roof decks.
On December 13, 2010, plaintiff, which is an unincorporated association formed by the filing of the declaration of condominium, filed this action against the sponsor defendants and Van J. Brody Architects. Plaintiff's complaint alleges 15 causes of action, including a first cause of action against 647 & 649 Washington Ave, LLC and Haijar for fraud, a second cause of action against 647 & 649 Washington Ave, LLC and Haijar for breach of contract, a third cause of action against 647 & 649 Washington Ave, LLC and Haijar for breach of implied warranty, a fourth cause of action against 647 & 649 Washington Ave, LLC and Haijar for negligence, a fifth cause of action against Haijar and Van J. Brody Architects for negligence, a sixth cause of action against Van J. Brody Architects for breach of contract, a seventh cause of action against Van J. Brody Architects for negligent misrepresentations and omissions in the architect's report and certification, an eighth cause of action against Van J. Brody Architects for fraud, a ninth cause of action against Van J. Brody Architects for negligence in preparing and approving the plans and specifications, a tenth cause of action against 647 & 649 Washington Ave, LLC for fraudulent conveyance, an eleventh cause of action against Double M Development, LLC and Munzer for fraud, a twelfth cause of action against Double M Development, LLC and Munzer for breach of contract, a thirteenth cause of action against Double M Development, LLC and Munzer for breach of implied warranty, a fourteenth cause of action against Double M Development, LLC and Munzer for negligence, and a fifteenth cause of action for a preliminary injunction. The sponsor defendants interposed an answer on or about January 12, 2011, denying plaintiff's allegations and asserting various affirmative defenses and two cross claims against Van J. Brody Architects. Van J. Brody Architects has not served an answer and is in default.
Defendants served and filed a third-party complaint for contribution and indemnity, dated January 13, 2011, on Erin Construction and Development Co., Inc. (Erin), which they amended...
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