Bd. of Managers of Chelsea 19 Condo. v. Chelsea 19 Associates

• Decision Date: 20 May 2010
• Citation: 73 A.D.3d 581,905 N.Y.S.2d 8
• Parties: The BOARD OF MANAGERS OF the CHELSEA 19 CONDOMINIUM, et al., Plaintiffs-Appellants, v. CHELSEA 19 ASSOCIATES, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 8 73 A.D.3d 581 The BOARD OF MANAGERS OF the CHELSEA 19 CONDOMINIUM, et al., Plaintiffs-Appellants, v. CHELSEA 19 ASSOCIATES, et al., Defendants-Respondents. Supreme Court, Appellate Division, First Department, New York. May 20, 2010.

Finder Novick Kerrigan LLP, New York (Thomas P. Kerrigan of counsel), for appellants.

Michael A. Haskel, Mineola, for Chelsea 19 Associates and Donald Zweibon, respondents.

L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Lee J. Sacket of counsel), for George Schwarz, respondent.

GONZALEZ, P.J., FRIEDMAN, DeGRASSE, MANZANET-DANIELS, ROMÁN, JJ.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 19, 2009, which, in an action by a condominium and certain of the its unit owners against the condominium's sponsor, its principal and its architect, granted the sponsor defendants' motion to dismiss the complaint as against them and sua sponte dismissed the complaint as against the architect, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered December 9, 2009, which, to the extent appealed, denied plaintiffs' motion to renew, unanimously dismissed as academic, without costs.

The motion court correctly held that the individual unit owners lack standing to seek damages for injury to the building's common elements ( see Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership, 50 A.D.3d 503, 504, 858 N.Y.S.2d 109 [2008] ). We otherwise affirm the result, albeit not for the motion court's reasons ( see Fenton v. Consolidated Edison Co. of N.Y., 165 A.D.2d 121, 125, 566 N.Y.S.2d 227 [1991], lv. denied 78 N.Y.2d 856, 574 N.Y.S.2d 937, 580 N.E.2d 409 [1991] ). The contract claims, which are based on the architect's description of the building's condition included in the offering plan and incorporated in the purchase agreements, are flatly contradicted by the "as is" clause and related disclaimer provisions in those documents ( see Rivietz v. Wolohojian, 38 A.D.3d 301, 832 N.Y.S.2d 505 [2007] ); those provisions are not undermined by the general statement in those documents that the building was in "good" condition. All of the fraud and related tort claims arise from the same provisions said to have been breached and seek the same damages, and thus merely duplicate the insufficient contract claims ( see Moustakis v. Christie's, Inc., 68 A.D.3d 637, 637, 892 N.Y.S.2d 83 [2009]; ESBE Holdings, Inc. v. Vanquish Acquisition Partners, LLC, 50 A.D.3d 397, 398-399, 858 N.Y.S.2d 94 [2008] ). Moreover, plaintiffs are foreclosed from establishing reliance by the specific disclaimers ( see Citibank v. Plapinger, 66 N.Y.2d 90, 94-95, 495 N.Y.S.2d 309, 485 N.E.2d 974 [1985] ), and by their undertaking to conduct their own investigation ( see Parker East 67th Assoc. v. Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y., 301 A.D.2d 453, 454, 754 N.Y.S.2d 255 [2003], lv. denied 100 N.Y.2d 502, 760 N.Y.S.2d 765, 790 N.E.2d 1194 [2003] ). Absent a confidential or fiduciary relationship, defendants did not have a duty of disclosure ( see Dembeck v. 220 Cent. Park S., LLC, 33 A.D.3d 491, 492, 823 N.Y.S.2d 45 [2006] ), and common-law fraud may not be asserted against a condominium sponsor based on omissions from the offering plan ( see Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership, 12 N.Y.3d 236, 879 N.Y.S.2d 17, 906 N.E.2d 1049 [2009] ). The claim for negligent performance of contract is not cognizable ( see City of New York v. 611 W. 152nd St., 273 A.D.2d 125, 126, 710 N.Y.S.2d 36 [2000] ). The claims for wrongful transfers of development rights, sounding in conversion, unjust enrichment...