Outrigger Const. Co., Inc. v. Bank Leumi Trust Co. of New York
| Decision Date | 02 June 1997 |
| Citation | 658 N.Y.S.2d 394,240 A.D.2d 382 |
| Parties | OUTRIGGER CONSTRUCTION COMPANY, INC., Respondent, v. BANK LEUMI TRUST COMPANY OF NEW YORK, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Herrick, Feinstein, LLP, New York City, (Geri S. Krauss, of counsel), for appellants.
Connors & Sullivan, P.C., Brooklyn, (Ralph Young, of counsel), for respondent.
Before O'BRIEN, J.P., and RITTER, ALTMAN and McGINITY, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Garry J.), dated June 19, 1996, as denied those branches of their motion which were for summary judgment dismissing the first, second, and fourth causes of action in the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the defendants' motion which were for summary judgment dismissing the first, second, and fourth causes of action in the complaint are granted, and those causes of action in the complaint are dismissed.
The plaintiff entered into a contract with Nostrand Avenue Development Corp. (hereinafter Nostrand) in connection with the construction of a building on property owned by Nostrand. Based on Nostrand's alleged failure to make all of the payments required under the contract, the plaintiff commenced this action against the defendant Bank Leumi Trust Company of New York, which provided a construction loan to Nostrand, and against EOR Forty-Three of New York, Inc. (hereinafter EOR), the subsequent owner of the property. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted only that branch of the motion which was to dismiss the third cause of action.
We agree with the Supreme Court that the plaintiff's action was not barred by the doctrine of res judicata. The dismissal of the plaintiff's prior action, which was to foreclose on a mechanic's lien on the subject property (see, Outrigger Constr. Co. v. Nostrand Ave. Dev. Corp., 217 A.D.2d 689, 630 N.Y.S.2d 332), was not an adjudication on the merits (see, Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328). However, we conclude that the defendants established their entitlement to summary judgment dismissing the remaining causes of action in the complaint on other grounds.
The plaintiff failed to demonstrate that it has a viable breach of contract cause of action against the defendant bank. The written construction contract was solely between the plaintiff and Nostrand, and the plaintiff may not assert a contractual cause of action against a party with whom it was not in privity (see, Martirano Constr. Corp. v. Briar Contr. Corp., 104 A.D.2d 1028, 481...
To continue reading
Request your trial
-
Ga. Malone & Co. Inc. v. Rieder
...by the majority here-namely, that services be performed at the defendant's “behest” ( see e.g. Outrigger Constr. Co. v. Bank Leumi Trust Co. of N.Y., 240 A.D.2d 382, 384, 658 N.Y.S.2d 394 [1997] lv. denied 91 N.Y.2d 807, 669 N.Y.S.2d 260, 692 N.E.2d 129 [1998] ). The Court of Appeals affirm......
-
Herkimer Cnty. Indus. Dev. Agency v. Vill. of Herkimer, 168
...a party with whom it was not in privity," i.e., a party with whom it did not contract ( Outrigger Constr. Co. v. Bank Leumi Trust Co. of N.Y., 240 A.D.2d 382, 383, 658 N.Y.S.2d 394 [2d Dept. 1997], lv denied 91 N.Y.2d 807, 1998 WL 161774 [1998] ; see Niagara Foods, Inc. v. Ferguson Elec. Se......
-
Gen. Ret. Sys. of the City of Detroit v. UBS, AG
...Agreement. To state a contractual claim, the plaintiffs must have privity with the defendant. Outrigger Const. Co., Inc. v. Bank Leumi Trust Co., 240 A.D.2d 382, 658 N.Y.S.2d 394, 396 (1997) (“The written construction contract was solely between the plaintiff and [a third party], and the pl......
-
La Barte v. Seneca Resources Corp.
...privity (see, Paladino, Inc. v Lucchese & Son Contr. Corp., 247 A.D.2d 515; Vogel v Lyman, 246 A.D.2d 422; Outrigger Constr. Co. v Bank Leumi Trust Co. of N. Y., 240 A.D.2d 382, 383, lv denied 91 N.Y.2d 807). We therefore conclude that the court erred in failing to grant that part of defend......
-
§4.11 IV. Unjust Enrichment
...whether the benefit is directly or indirectly conveyed”) (citation omitted) with Outrigger Constr. Co. v. Bank Leumi Trust Co. of N.Y., 240 A.D.2d 382, 658 N.Y.S.2d 394 (2d Dep’t 1997) (privity required) and Kapral’s Tire Serv., Inc., v. Aztek Tread Corp., 124 A.D.2d 1011 (4th Dep’t 1986) (......