Mannix Industries, Inc. v. Antonucci

• Citation: 191 A.D.2d 482,594 N.Y.S.2d 327
• Parties: MANNIX INDUSTRIES, INC., Appellant, v. Robert ANTONUCCI, et al., Respondents.
• Decision Date: 08 March 1993
• Court: New York Supreme Court — Appellate Division

Page 327

594 N.Y.S.2d 327

191 A.D.2d 482

MANNIX INDUSTRIES, INC., Appellant, v. Robert ANTONUCCI, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

March 8, 1993.

Norman L. Rosenthal, Great Neck, for appellant.

Morris, Graham, Stephens & McMorrow, Westbury (William H. Morris and John Stetson, of counsel), for respondents.

Before BRACKEN, J.P., and EIBER, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages, inter alia, for negligence, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 18, 1990, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof which granted those branches of the defendants' motion which were to dismiss the second and third causes of action and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

This case arises out of a construction contract pursuant to which the plaintiff Mannix Industries, Inc. (hereinafter Mannix) agreed to install windows in four buildings owned by Seward Park Housing Corp. (hereinafter Seward). Seward retained the defendants, a firm of architects and engineers, to administer this contract. After Mannix commenced working on the buildings, Seward terminated the contract pursuant to the defendants' recommendation and certification letter stating that Mannix's performance was not adequate. Thereafter, pursuant to an arbitration clause in the contract, Mannix arbitrated its claim of an anticipatory breach of the contract by Seward. After the arbitrators issued an award in favor of Mannix, Mannix commenced this action against the defendants.

The arbitration award against Seward did not collaterally estop Mannix from pursuing its claim to recover damages for negligent misrepresentation. The defendants did not meet their burden of showing that the issue of the defendants' negligent misrepresentation was necessarily determined by the arbitrators (see, Weber v. Kessler, 177 A.D.2d 843, 576 N.Y.S.2d 458; cf., Taylor v. Ashby, 134 A.D.2d 248, 520 N.Y.S.2d 587). However, we conclude that Mannix may not assert a cause of action to recover damages for negligent misrepresentation, since Mannix lacks privity with the defendants and there is not a bond between them so close as to be the functional equivalent of contractual privity (see, Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377, 590 N.Y.S.2d 831, 605 N.E.2d 318; Ossining Union Free School Dist. v. Anderson LaRocca Anderson, 73 N.Y.2d 417, 541 N.Y.S.2d 335, 539 N.E.2d 91). Therefore, the first cause of action was...