Board of Managers of Riverview at College Point Condominium III v. Schorr Bros. Development Corp.

• Decision Date: 13 April 1992
• Citation: 582 N.Y.S.2d 258,182 A.D.2d 664
• Court: New York Supreme Court — Appellate Division
• Parties: BOARD OF MANAGERS OF the RIVERVIEW AT COLLEGE POINT CONDOMINIUM III, et al., Appellants, v. SCHORR BROTHERS DEVELOPMENT CORP., etc., et al., Defendants, Vanguard Plumbing & Heating Corp., et al., Respondents. (and a third-party action)

Page 258

582 N.Y.S.2d 258

182 A.D.2d 664

BOARD OF MANAGERS OF the RIVERVIEW AT COLLEGE POINT CONDOMINIUM III, et al., Appellants, v. SCHORR BROTHERS DEVELOPMENT CORP., etc., et al., Defendants Vanguard Plumbing & Heating Corp., et al., Respondents (and a third-party action)

Supreme Court, Appellate Division,

Second Department.

April 13, 1992.

Ted M. Rosen, Great Neck, for appellants.

Lambert & Weiss, New York City (Arthur N. Lambert and Marc R. Lepelstat, of counsel), for respondents.

Before BRACKEN, J.P., and ROSENBLATT, MILLER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract and for negligence, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Rutledge, J.), dated July 9, 1990, as granted those branches of the motion of the defendants-respondents Vanguard Plumbing & Heating Corp. and Thomas Verdiglione which were (1) for summary judgment dismissing the amended complaint insofar as it is asserted against them, and (2) for summary judgment dismissing cross claims against them.

ORDERED that the appeal from so much of the order as granted that branch of the motion which was for summary judgment dismissing the cross claims asserted against the defendants-respondents is dismissed; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that the defendants-respondents are awarded one bill of costs.

Pursuant to contracts between the individual plaintiffs (hereinafter the homeowners) or their predecessors in interest and the defendant Schorr Brothers Development Corp. (hereinafter Schorr Brothers), the homeowners or their predecessors in interest each purchased units in a condominium, the Riverview at College Point Condominium III, to be constructed by Schorr Brothers, the owner of the project. Schorr Brothers entered into agreements with the codefendants, including the respondents, to design, plan, inspect, and construct the condominium.

Following the completion of the project and the occupation by the homeowners of their individual units, the homeowners and the Board of Managers of the Riverview at College Point Condominium III (hereinafter the Board of Managers) brought this action against the defendants alleging in their complaint causes of action sounding in negligence, breach of contract, and breach of express and implied warranties. The plaintiffs asserted that they were third-party beneficiaries of the contracts between Schorr Brothers and the respondents.

Subsequently, the respondents moved for summary judgment dismissing the complaint insofar as it is asserted against them and the cross claims for contribution and indemnification brought by codefendants against them. The court granted the motion. On appeal, we reject the plaintiffs' contention that triable issues of fact exist regarding whether they are third-party beneficiaries of the contract between Schorr Brothers and the respondents.

It is settled that a third party may sue as a beneficiary on a contract made for his benefit (Lawrence v. Fox, 20 N.Y. 268; 17A C.J.S., Contracts, § 519[3]; 10 N.Y.Jur., Contracts § 237). However, "[g]enerally it has been held that the ordinary construction contract--i.e., one which does not expressly state that the intention of the contracting parties is to benefit a third party--does not give third parties who contract with...