Bd. of Managers of Marke Garden Condo. v. 240/242 Franklin Ave. LLC, 029255/2007

• Decision Date: 21 December 2017
• Docket Number: 029255/2007
• Citation: 58 Misc.3d 1203 (A),93 N.Y.S.3d 624 (Table)
• Parties: BOARD OF MANAGERS OF MARKE GARDEN CONDOMINIUM, on its own and on behalf of the Individual unit owners, Plaintiffs, v. 240/242 FRANKLIN AVENUE LLC, Scarano Architect PLLC, Scarano Architect PLLC, F/K/A Scarano & Associates, Corcoran Group–Brooklyn, Royal Roofing and Construction, Inc., and Namik Marke a/k/a Mike Marke, Defendants.
• Court: New York Supreme Court

58 Misc.3d 1203 (A)
93 N.Y.S.3d 624 (Table)

BOARD OF MANAGERS OF MARKE GARDEN CONDOMINIUM, on its own and on behalf of the Individual unit owners, Plaintiffs,
v.
240/242 FRANKLIN AVENUE LLC, Scarano Architect PLLC, Scarano Architect PLLC, F/K/A Scarano & Associates, Corcoran Group–Brooklyn, Royal Roofing and Construction, Inc., and Namik Marke a/k/a Mike Marke, Defendants.

029255/2007

Supreme Court, Kings County, New York.

Decided on December 21, 2017

Genine D. Edwards, J.

On December 2, 2002, owner Namik Marke a/k/a Mike Marke (Marke) of Royal Roofing and Construction Inc. (Royal) entered into an agreement with Scarano and Associates Architects (Scarano) for architectural services in the construction of a condominium of two four-family buildings, located at 238A and 240 Franklin Avenue, in Brooklyn ("the premises"). Marke was also the principal and sole owner of 240/242 Franklin Avenue LLC ("240/242"), the sponsor of the condominium, which was an LLC formed solely to develop the condominium and sell the units. Royal was the general contractor for the project.¹ Defendant Scarano submitted a certification of the offering plan in October 2003. Corcoran Group–Brooklyn ("Corcoran"), the designated sales agent, assisted in selling the condominiums to the plaintiffs in 2003–2004.

The condominiums were advertised as luxury residences; an eight-unit building with an elevator. The elevator was never installed, and plaintiffs allege this occurred without due notice. Moreover, shortly after taking possession of the premises in 2004, plaintiffs began experiencing leaking, heating and drainage malfunctions among other issues. This lawsuit ensued.

Now, defendants Scarano, 240/242 and Marke, and Corcoran make separate motions for summary judgment. The Board of Managers of Marke Gardens Condominium, on its own and on behalf of the individual unit owners ("plaintiffs") cross-move for the same relief.

Law

Summary Judgment is a drastic remedy that deprives a litigant of his or her day in court and should, therefore, only be employed when there is no doubt as to the absence of triable issues of material fact. Kolivas v. Kirchoff , 14 AD3d 493, 787 N.Y.S.2d 392 (2d Dept. 2005) ; Andre v. Pomeroy , 35 NY2d 361, 362 N.Y.S.2d 131 (1974). The proponent of the motion has the initial burden of laying bare its claim demonstrating by admissible evidence that there are no issues of fact for a jury to determine. Alvarez v. Prospect Hosp. , 68 NY2d 320, 508 N.Y.S.2d 923 (1986) ; In re Cassini , 120 AD3d 799, 992 N.Y.S.2d 93 (2d Dept. 2014). "If the moving party fails to make such a showing, the motion must be denied, irrespective of the sufficiency of the opposing papers." Edwards v. Great Atlantic & Pacific Tea Company, Inc. , 71 AD3d 721, 895 N.Y.S.2d 723 (2d Dept. 2010) ; Flynn v. Fedcap Rehabilitation Services, Inc. , 31 AD3d 602, 819 N.Y.S.2d 290 (2d Dept. 2006). "Once the movant provides sufficient proof, the burden of production rests on the adverse party to demonstrate the existence of a triable issue of fact." Zapata v. Buitriago , 107 AD3d 977, 969 N.Y.S.2d 79 (2d Dept. 2013). Applying these principles to the five motions, this Court will consider each in turn.

Scarano's Motion

Defendant Scarano contends that the theory of functional equivalent of privity does not apply and plaintiffs are not third-parties or intended beneficiaries nor were they known parties at the time it entered into the agreement with defendant Marke, thus plaintiffs' claims for breach of contract and negligence/malpractice are not viable.

Plaintiffs counter that they satisfy the elements of a functional equivalent of privity with Scarano, to wit, 1) an awareness by the maker of a statement that it is to be used for a particular purpose; 2) reliance by a known party on the statement, in furtherance of that purpose; and 3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance. In support of the calculus in defeating a summary judgment motion, plaintiffs make it clear that a finder of fact may determine that defendant Scarano was aware that its services were in furtherance of the sale of eight condominium apartments to a determinant, small group of eight purchasers. Indeed, defendant Scarano signed a statement indicating that a prospective purchaser may rely on its report. Plaintiffs claim they relied upon all information received including the offering plan, which was certified by defendant Scarano. More to the point, defendant Scarano's owner specifically testified that he had a conversation with defendant Marke regarding the desires of the purchasers of the two top floor condominiums with respect to private elevator service.

These fact queries, regarding all three elements in accordance with the rule of law handed down by the Court of Appeals in Parrot v. Coopers and Lybrand, LLP , 95 NY2d 479, 718 N.Y.S.2d 709 (2000) and Newswallk Condominium v. Shaya B. Pacific, LLC, 102 AD3d 932, 961 N.Y.S.2d 203 (2d Dept. 2013) (defendant failed to establish that he was not privity with the condominium purchasers), must be submitted to the triers of fact. Hence, defendant Scarano has failed to shoulder its burden.

It...