Devlin v. 645 First Ave. Manhattan Co.

• Decision Date: 18 July 1996
• Citation: 645 N.Y.S.2d 476,229 A.D.2d 343
• Parties: Sandra DEVLIN, et al., Plaintiffs-Respondents-Appellants, v. 645 FIRST AVENUE MANHATTAN COMPANY, et al., Defendants-Appellants-Respondents, and Corinthian Owners Corp. et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 476

645 N.Y.S.2d 476

229 A.D.2d 343

Sandra DEVLIN, et al., Plaintiffs-Respondents-Appellants, v. 645 FIRST AVENUE MANHATTAN COMPANY, et al Defendants-Appellants-Respondents and Corinthian Owners Corp. et al., Defendants.

Supreme Court, Appellate Division First Department.

July 18, 1996.

Heddyeh P. Broumand, for Plaintiffs-Respondents-Appellants.

Andrew J. Lorin, for Defendants-Appellants-Respondents.

Before SULLIVAN, J.P., and MILONAS, ELLERIN, NARDELLI and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Carol Arber, J.), entered December 30, 1994, which, inter alia, denied the motion on behalf of defendants-appellants-respondents to dismiss the 1st, 2d, 3d, 8th, 9th, 10th, 11th, 13th, 14th and 15th causes of action, granted their motion to dismiss the 4th, 5th, 6th and 7th causes of action, and denied their motion for sanctions, unanimously modified, on the law, to vacate the denial of the motion to dismiss the 1st, 2d, 3d, 8th, 9th, 10th, 11th, 13th, 14th and 15th causes of action and to grant the motion to dismiss the 1st, 2d, 3d, 8th, 9th, 11th, 13th, 14th and 15th causes of action and to dismiss the 10th cause of action except insofar as it seeks redress for damages to the subject apartment caused by flooding from out-of-doors to indoors, and otherwise affirmed, without costs, and order, same court and Justice, entered on the same date, which denied defendants-appellants-respondents' motion for sanctions in connection with their successful motion to quash plaintiffs' subpoena duces tecum addressed to a non-party witness, unanimously affirmed, without costs.

The underlying action herein seeks redress against both the sponsors and the management of a condominium based on various alleged defects in the building and in an individual unit purchased by plaintiffs in 1988, which, they allege, they have never occupied because of said defects. This appeal deals solely with the causes of action pled against the sponsors.

The majority of plaintiffs' claims for breach of contract against these defendants, which are found in their 8th, 9th, 10th and 11th causes of action, should be dismissed for lack of standing since, under the specific language of the purchase agreement, plaintiffs, as individual unit owners, may not seek relief directly from the sponsors with respect to anything defined in the purchase agreement as a common element but must instead seek to have the board of managers pursue their remedies for them. However, to the extent that plaintiffs claim that these defendants failed to repair conditions which caused plaintiffs' apartment to experience flooding, their claim was properly asserted. Under the extended liability provided for by the survival agreement with regard to the sponsor's post-closing obligations, the sponsor specifically undertook responsibility for any "subsequent flooding from out-of-doors to indoors". Since this type of damage was specifically included in the survival agreement, the sponsors may not now claim that plaintiffs are not permitted to pursue this claim directly against them. Moreover, the reference in the survival agreement, that sponsor's responsibility for flooding repairs would be in accordance with paragraph M of the purchase agreement, does not indicate to the contrary, since Paragraph M merely...