Bd. of Managers of Marke Gardens Condo. v. 240/242 Franklin Ave., LLC

• Decision Date: 23 March 2010
• Citation: 71 A.D.3d 935,898 N.Y.S.2d 564
• Parties: BOARD OF MANAGERS OF MARKE GARDENS CONDOMINIUM, etc., respondent, v. 240/242 FRANKLIN AVENUE, LLC, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 564

71 A.D.3d 935

BOARD OF MANAGERS OF MARKE GARDENS CONDOMINIUM, etc., respondent,

v.240/242 FRANKLIN AVENUE, LLC, et al., appellants, et al., defendants.

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

March 23, 2010.

Gabor & Marotta, LLC, Staten Island, N.Y. (Daniel C. Marotta of counsel), for appellants and defendant Royal Roofing and Construction, Inc.

Daniel F. Spitalnic, Great Neck, N.Y. for respondent.

MARK C. DILLON, J.P., FRED T. SANTUCCI, RUTH C. BALKIN, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for common-law fraud, fraud in the inducement, and violations of General Business Law §§ 349 and 350, the defendants 240/242 Franklin Avenue, LLC, and Namik Marke, a/k/a Mike Marke, appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Starkey, J.), dated November 6, 2008, as denied those branches of the motion of the defendants Royal Roofing and Construction, Inc., and Namik Marke, a/k/a Mike Marke, which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against Namik Marke, a/k/a Mike Marke.

ORDERED that the appeal by the defendant 240/242 Franklin Avenue, LLC, is dismissed, as it is not aggrieved by the portions of the order appealed from ( see CPLR 5511); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendant Namik Marke, a/k/a Mike Marke; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff payable by the defendant Namik Marke, a/k/a Mike Marke.

In 2003, the defendant sponsor, 240/242 Franklin Avenue, LLC (hereinafter the sponsor), contracted to develop a new four-story condominium containing eight apartments, to be known as the Marke Gardens Condominiums, located on Franklin Avenue in Brooklyn. In 2004 the sponsor filed a condominium offering plan, as required by the Martin Act, with the New York State Attorney General ( see General Business Law § 352 et seq.) which was signed personally by the defendant Namik Marke, a/k/a Mike Marke (hereinafter the defendant), who is the Sponsor's manager and the president of the defendant Royal Roofing and Construction, Inc. (hereinafter Royal), hired as the development's general contractor.

Based upon alleged defects in the development's construction, the plaintiff condominium board commenced the instant action, inter alia, to recover damages for common-law fraud, fraud inthe inducement, and violations of General Business Law §§ 349 and 350, against, among others, the defendant, Royal, and the sponsor. Among other causes of action, the complaint alleged that the defendant made statements and representations orally, in the purchase agreements, and in brochures and advertisements published in connection therewith, that were false, fraudulent, and contained misrepresentations and material omissions. More specifically, the plaintiff alleged, among other things, that, pursuant to the offering plan, advertisements, brochures, and purchase agreements, the building was to be constructed with an elevator, which was never installed, and that the building was to be "a first class luxury building," but, in fact, contained numerous design and construction defects as detailed in an evaluation prepared by an engineering firm.

The defendant and Royal moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the causes of action alleging common-law fraud, fraud in the inducement, and violations of General Business Law §§ 349 and 350 insofar as asserted against the defendant. In the order appealed from, the Supreme Court, inter alia, denied the motion to dismiss. We affirm the order insofar as appealed from.

The causes of action against the defendant were based upon the alleged fraud and material misrepresentations contained not only in the offering plan, but in brochures,...