Polsky v. 145 Hudson St. Assocs. L.P.
| Decision Date | 22 November 2013 |
| Docket Number | Index No. 107108/2011 |
| Citation | 2013 NY Slip Op 33432 |
| Parties | JAMES POLSKY, Plaintiff v. 145 HUDSON STREET ASSOCIATES L.P., HUDSON SQUARE MANAGEMENT CORPORATION, ROGERS MARVEL ARCHITECTS, PLLC, and JOSEPH PELL LOMBARDI, Defendants |
| Court | New York Supreme Court |
DECISION AND ORDER
I. BACKGROUND
Plaintiff sues defendants to recover damages for breach of a contract and for fraudulent inducement in connection with his purchase of unit 13B in a residential condominium building at 145 Hudson Street, New York County, for which defendant 145 Hudson Street Associates L.P. was the sponsor. Defendant Hudson Square Management Corporation was 145 Hudson Street Associates' general partner. Defendants Rogers Marvel Architects, PLLC, and Lombardi provided architectural design services to the sponsor. 145 Hudson Street Associates and Hudson Square Management move to dismiss the complaint against them based on conclusive documentary evidence and failure to state a claim, C.P.L.R. § 3211(a)(1) and (7), and for attorneys' fees. Rogers Marvel Architects and Lombardi each separately move to dismiss the complaint against them based on its failure to state a claim and failure to include a necessary party. C.P.L.R. § 3211(a)(7) and(10). Plaintiff cross-moves to join his wife as a plaintiff and to amend the complaint to add the same claims by her as by him, C.P.L.R. §§ 1001(a), 3025(b), and separately cross-moves to strike affirmations on behalf of Lombardi's three co-defendants supporting the motion to dismiss the action against Lombardi. See C.P.L.R. § 3024(b). For the reasons explained below, the court grants defendant architects' motions, grants the other defendants' motion to the extent set forth, grants plaintiff's cross-motion to join a plaintiff and amend the complaint, and grants his separate cross-motion to the extent set forth.
II. PLAINTIFF'S CROSS-MOTION TO JOIN ANOTHER PLAINTIFF AND
Defendants do not oppose plaintiff James Polsky's cross-motion to join his wife Bernadette Polsky as a plaintiff and to amend the complaint to include the same claims by her as by her husband. As a signatory to the Purchase Agreement for the condominium unit and a party with an equitable interest in the unit, plaintiff's spouse is a necessary party to this action. Bonoff v. Troy, 187 A.D.2d 302, 304 (1st Dep't 1992); Loree v. Barnes, 59 A.D.3d 965 (4th Dep't 2009). See Mercaldo v. Navarro, 50 A.D.3d 980, 981 (2d Dep't 2008); Hitchcock v. Abbott, 9 A.D.3d 563, 566 (3d Dep't 2004). Since the court grants plaintiff's unopposed cross-motion, the motions by Rogers Marvel Architects and Lombardi to dismiss the complaint based on plaintiff's failure to join a necessary party, C.P.L.R. § 3211(a)(10), are moot. The court also applies defendants' motions to the proposed amended complaint. Ferguson v. Sherman Sq. Realty Corp., 30A.D.3d 288 (1st Dep't 2006); Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35, 38 (1st Dep't 1998).
III. DEFENDANTS' MOTIONS TO DISMISS THE COMPLAINT'S CLAIMS
Upon defendants' motion to dismiss plaintiffs' claims pursuant to C.P.L.R. § 3211(a)(1), the court may not rely on facts alleged by defendants to defeat the claims unless the evidence is in admissible documentary form, demonstrates the absence of any material dispute regarding those facts, and completely negates the allegations against defendants. Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595 (2008); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); Greenapple v. Capital One, N.A., 92 A.D.3d 548, 550 (1st Dep't 2012). Upon defendants' motion to dismiss the complaint pursuant to C.P.L.R. § 3211(a)(7), the court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiffs' favor. Walton v. New York State Dept. of Correctional Servs., 13 N.Y.3d 475, 484 (2009); Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326; Wadiak v. Pond Mgt., LLC, 101 A.D.3d 474, 475 (1st Dep't 2012). In short, the court may dismiss a claim based on C.P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d at 88; Harris v. IG Greenpoint Corp., 72 A.D.3d 608, 609 (1st Dep't 2010); Frank v. DaimlerChrysler Corp., 292 A.D.2d118, 121 (1st Dep't 2002),
Plaintiffs principally claim they purchased a condominium unit that defendants represented would be completely customizable and have two entrances. Plaintiffs allege that defendants induced them to purchase the unit by concealing that a mechanical room, which was unalterable and eliminated one of the entrances, would be inside the unit.
To establish breach of a contract, plaintiffs must show a contract, that plaintiffs performed and defendants breached it, and that defendants' breach caused plaintiffs to sustain damages. Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426 (1st Dep't 2010). See Tutora v. Siecrel, 40 A.D.3d 227, 228 (1st Dep't 2007). ' Plaintiffs must plead the specific terms of the agreement that defendant breached. Marino v. Vunk, 39 A.D.3d 339, 340 (1st Dep't 2007); Giant Group v. Arthur Andersen LLP, 2 A.D.3d 189, 190 (1st Dep't 2003); Kraus v. Visa Intl. Serv. Assn., 304 A.D.2d 408 (1st Dep't 2003).
The parties do not dispute a contract in the form of the Purchase Agreement dated February 17, 2006, between plaintiffs and 145 Hudson Street Associates. Plaintiffs claim 145 Hudson Street Associates breached this contract of sale by providing plaintiffs a unit (1) with less than 4,120 square feet of floor space; (2) neither fully customizable nor a "white box," Aff. of Rishi Bhandari Ex. A (V. Am. Compl.) ¶ 87; (3) that necessarilyincluded a mechanical room; (4) that lacked two entrances; and (5) in which defective casement windows were installed. Plaintiffs allege that defendants made their representations regarding the unit in the Condominium Offering Plan, in marketing materials' text and floor plans, and orally during plaintiffs' visits to the unit.
145 Hudson Street Associates and Hudson Square Management support their motion to dismiss the complaint with an affidavit by Stanley Scott, the president of Hudson Square Management. Scott's affidavit lays a foundation for the admissibility of other documents that these defendants rely on, but is not itself documentary evidence under C.P.L.R. § 3211(a)(1). Regini v. Board of Mgrs. of Loft Space Condominium, 107 A.D.3d 496, 497 (1st Dep't 2013); Flowers v. 73rd Townhouse LLC, 99 A.D.3d 431 (1st Dep't 2012); Correa v. Orient-Express Hotels, Inc., 84 A.D.3d 651 (1st Dep't 2011). See Weil, Qotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271 (1st Dep't 2004). The Purchase Agreement between plaintiffs and 145 Hudson Street Associates expressly adopts the Condominium Offering Plan. Aff. of Stanley Scott Ex. F, at 3.
In the Purchase Agreement § 2, plaintiffs acknowledge "having received and read the Plan and amendments First through Seventeen thereto (representing all of the current amendments to the Plan), filed with the Department of Law of the State of New York . . . ," id. at 2, and "having had full opportunity to examine all documents and investigate all statements made hereinand in the Plan (including the exhibits thereto)." Id. at 3. Plaintiffs also agreed to abide by the Offering Plan's terms and any amendments to it. Id.
In the Purchase Agreement § 21, plaintiffs acknowledge that they have:
not relied upon any architect's plans, sales plans, selling brochures, advertisements, representations, warranties, statements, or estimates of any nature whatsoever, whether written or oral, made by Sponsor or others, including, but not limited to, any relating to the description or physical condition of the Property, the Building, or the Unit, the size or the dimensions of the Unit, the number of rooms therein contained, or any other physical characteristics thereof . . . .
Id. at 14. Section 25 provides that the "purchase agreement, together with the Plan, as the Plan may be amended from time to time, constitutes the entire agreement between the parties as to the subject matter hereof and supersedes all prior understandings and agreements." Id. at 16. These provisions of the Purchase Agreement negate all plaintiffs' claimed breaches regarding representations made outside the Purchase Agreement and Offering Plan.
In Purchase Agreement § 19, the purchaser:
signifies acceptance of the condition of the Property, including the Building, the Unit and all fixtures, machinery, equipment, installations and other personal property contained therein . . . as configured and shown on the floor plans contained in the Plan and as detailed in the Architect's Description of the Property, and . . . . acknowledges having read, or having ample opportunity to read, the Description of Property and Specifications set forth in Part II of the Plan, which sets forth a description of the then existing physical condition of the Property and planned improvements.
Id. at 11-12. 145 Hudson Street Associates and Hudson Square
Management nonetheless present only the part of the Offering Plan that constitutes the Condominium By-Laws. By failing to present any other part of the Offering Plan, these defendants prevent the court from determining whether the plan's provisions negate plaintiffs' remaining claimed breaches.
Lombardi presents an Offering Plan that includes more parts, but it is not certified as a public record, and no witness on personal knowledge otherwise authenticates it as the complete and accurate plan and lays the foundation for its admissibility. Aff. of Robert Fitch Ex. L. Since the amended complaint refers to the Offering Plan, however, the court considers Lombardi's document for purposes...
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