Bd. of Managers of 255 Hudson Condo. v. Hudson St. Assocs., LLC
| Decision Date | 22 October 2012 |
| Docket Number | INDEX NO. 101578/12 |
| Citation | 2012 NY Slip Op 32669 |
| Parties | BOARD OF MANAGERS OF 255 HUDSON CONDOMINIUM, on behalf of all unit owners. Plaintiff. v. HUDSON STREET ASSOCIATES, LLC, CHRISTOPHER M. MATORELLA, RICHARD MACK GOTHAM GREENWICH CONSTRUCTION CO., LLC ETTINGER ENGINEERING ASSOCIATES, HANDEL ARCHITECTS, LLP and DESIMONE CONSULTING ENGINEERS PLLC, Defendants. |
| Court | New York Supreme Court |
PRESENT: HON. MANUEL J. MENDEZ
Justice
MOTION DATE 10-03-2012
The following papers, numbered 1 to 7 were read on this motion to dismiss the complaint:
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¦ ¦PAPERS NUMBERED¦
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¦Notice of Motion/ Order to Show Cause - Affidavits - Exhibits¦1 - 3 ¦
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¦Answering Affidavits - Exhibits cross motion ¦4 - 6 ¦
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¦Replying Affidavits ¦7 ¦
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Cross-Motion: X Yes No
Plaintiff brought this action as the governing body of a condominium association, and seeks to recover damages caused to 255 Hudson Street Condominium by those individuals and entities responsible for its construction. The damages alleged include water leaks, malfunctioning heating and cooling units and missing sprinkler heads. This action was commenced on February 14, 2012, against Hudson Street Associates, LLC (hereinafter referred to as the "Sponsor"), Chistopher Matorella and Richard Mack (principals of the Sponsor); Gotham Greenwich Construction Co., LLC, (hereinafter referred to as "Gotham") as the contractor and construction manager; Ettinger Consulting Engineering (hereinafter referred to as "Ettinger") as an engineering consulting firm; Handel Architects, LLP (hereinafter referred to as "Handel"), as the architect and DeSimone Consulting Engineers, PLLC (hereinafter referred to as "DeSimone") as structural engineers. The complaint asserts causes of action for breach of contract against all defendants; negligence in performance of services against the contractor, engineers and architect; and breach of express warranty only as against the Sponsor. The plaintiff entered into a contract with the Sponsor, it alleges incorporated the agreements with all the other parties.
HANDEL seeks an Order pursuant to CPLR §3211[a][1], [5],[7] dismissing the complaint and all cross-claims asserted against it.
DESIMONE moves under motion seq. 002, seeking an Order pursuant to CPLR §3211[a][1],[5],[7] dismissing the complaint and all cross-claims asserted against it.
GOTHAM moves under motion seq. 003, seeking an Order pursuant to CPLR §3211[a][1],[7] dismissing the causes of action asserted in the complaint against it.
Plaintiff cross-moves against GOTHAM under motion seq. 003, seeking an Order pursuant to CPLR §3211 dismissing the counter-claim stating that the cause of action against them as stated in the complaint are frivolous and result in malicious prosecution.
A motion to dismiss pursuant to CPLR §3211[a][1], requires that the party seeking dismissal produce documentary evidence that "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (See, Leon v. Martinez, 84 N.Y. 2d 83, 638 N.E. 2d 511, 614 N.Y.S. 2d 972 [1994] and Blonder & Co., Inc. v. Citibank, N.A., 28 A.D. 3d 180, 808 N.Y.S. 2d 214 [N.Y.A.D. 1st Dept., 2006]). Pursuant to CPLR §3211[a][5], an action may be dismissed based on a specific claim that, "the cause of action may not be maintained because of ...statute of limitations...." A motion to dismiss pursuant to CPLR §3211[a][7], for failure to state a cause of action, requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and it is properly pled (Leon v. Martinez, 84 N.Y. 2d 83, 614 N.Y.S. 2d 972, 638 N.E. 2d 511 [1994]). Documentary evidence that contradicts the allegations, are a basis for dismissal (Morgenthow & Latham v. Bank of New York Company, Inc., 305 A.D. 2d 74, 760 N.Y.S. 2d 438 [N.Y.A.D. 1st Dept., 2003]).
The statute of limitations on a claim against an architect that is essentially stated as breach of the ordinary professional obligations, pursuant to CPLR §214[6], has a three year statute of limitations, regardless of whether it is asserted as breach of contract or negligence (R.M. Klimment & Frances Halsband, Architects v. McKinsey & Company, 3 N.Y. 3d 538, 821 N.E. 2d 952, 788 N.Y.S. 2d 648 [2004]). The statute of limitations on a claim against a design professional pursuant to CPLR §214[6], has a three year statute of limitations, regardless of whether it is asserted as breach of contract or malpractice. The three year statute of limitations begins to run from the date of termination of the professional relationship between the parties and the completion of, "performance of significant (i.e. non-ministerial) duties under the the parties contract"(Sendar Development Co., LLC v. CMA Design Studio, P.C., 68 A.D. 3d 500, 890 N.Y.S. 2d 534 [N.Y.A.D. 1st Dept., 2009] citing to Parsons Brinckerhoff Quade & Douglas v. EnergyPro Constr. Partners, 271 A.D. 2d 233, 707 N.Y.S. 2d 30 [N.Y.A.D. 1st Dept., 2000]). The date of the final certificate of occupancy, is not controlling for statute of limitations purposes, where there is no contractual responsibility for its issuance. Additional billing or a minimal amount of subsequent work does not alter the completion date for the project (State of New York v. Lundin, 60 N.Y. 2d 987, 459 N.E. 2d 486, 471 N.Y.S. 2d 261 [1983]).
Indemnification permits the party compelled to pay for the loss, regardless of fault, to shift liability to a subcontractor whose negligence caused the loss. A party that has actually participated in causing the wrongdoing cannot receive the benefit of indemnification (17 Vista Fee Associates v. Teachers Ins. and Annuity Assoc. of America, 259 A.D. 2d 75, 693 N.Y.S. 2d 554 [N.Y.A.D. 1st Dept., 1999] and Trustees of Columbia Univ. v. Mitchell/ Giurgola Assoc., 109 A.D. 2d 449, 492N.Y.S. 2d 371 [N.Y.A.D. 1st Dept., 1985]). Indemnification is available when there are allegations of vicarious liability for plaintiff's injuries and negligent misrepresentation, even if there is no privity of contract (Richards Plumbing and Heating Co., Inc. v. Washington Group International Inc., 59 A.D. 3d 311, 874 N.Y.S. 2d 410 [N.Y.A.D. 1st Dept., 2009] and Beck v. Studio Kenji, Ltd, 90 A.D. 3d 462, 935 N.Y.S. 2d 5 [N.Y.A.D. 1st Dept., 2011]). The statute of limitations on a claim for indemnification on a contractual liability is six years, which starts to run upon payment to the injured party (CPLR §213 [21, State of New York v. Stewart's Ice Cream Co., Inc., 64 N.Y. 2d 83, 473 N.E. 2d 1184, 484 N.Y.S. 2d 810 [1984] and McDermott v. City of New York, 50 N.Y. 2d 211, 406 N.E. 2d 460, 428 N.Y.S. 2d 643 [1980]).
Common-law contribution is codified in CPLR §1401, it applies to damages for personal injury, injury to property and wrongful death. Individuals or entities that are subject to liability for damages, may seek contribution regardless of whether they are parties to an action or there is a judgment. Injury to property does not apply where plaintiff's underlying claims seek only the benefit of the bargain regardless of the tort language. Contribution does not apply where the underlying claim is for purely economic damages as a result of breach of contract and fails to assert an independent legal duty resulting in injury to property (Board of Education of the Hudson City School Dist. v. Sargent, Webster, Crenshaw & Foley, 71 N.Y. 2d 21, 517 N.E. 2d 1360, 523 N.Y.S. 2d 475 [1987] and Children's Corner Learning Center v. A. Miranda Contracting Corp., 64 A.D. 3d 318, 879 N.Y.S. 2d 418 [N.Y.A.D. 1st Dept., 2009]). An independent legal duty applies where there is an unduly dangerous product or circumstance which threatens the public. Damage caused by water leaks, does not constitute a danger to the public (Structure Tone, Inc. v. Universal Services Group, Ltd., 87 A.D. 3d 909, 929 N.Y.S. 2d 242 [N.Y.A.D. 1st Dept., 2011]).
Unit owners lack standing to seek relief for damage and defects against general contractors, architects and engineers on a project where at best they are, "only incidental rather than an intended, beneficiary of the contracts" entered into with a sponsor (Kerusa Co., LLC, v. W10Z/515 Real Estate Ltd. Partnership, (50 A.D. 3d 503, 858 N.Y.S. 2d 109 [N.Y.A.D. 1st Dept., 2008] and Bd. of Mgrs. of Chelsea 19 Condominiums v. Chelsea 19 Associates, 73 A.D. 3d 581, 905 N.Y.S. 2d 8 [N.Y.A.D. 1st Dept., 2010]). The board of managers causes of action for economic loss based on negligent construction can be dismissed if it is an incidental beneficiary to agreements and there is no privity of contract (Residential Bd. of Mgrs. Of Zeckendorf Towers v. Union Sq.- 14th St. Assoc., 190 A.D. 2d 636, 594 N.Y.S. 2d 161 [N.Y.A.D. 1st Dept., 1993]).
Pursuant to CPLR §3211[d] a motion to dismiss may be denied for discovery, if there are facts essential to justify opposition that may exist but cannot be stated (Copp v. Ramirez, 62 A.D. 3d 23, 874 N.Y.S. 2d 52 [N.Y.A.D. 1st Dept., 2009]).
Handel and DeSimone seek to dismiss the causes of action and the cross-claims asserted against them, claiming that their actual physical work was completed more than three years before plaintiff commenced this action. Handel claims that as of January 8, 2007, it had completed performance of significant duties under the contract and the three year statutory period ran as of that date. Richard...
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