Residential Bd. of Managers of Zeckendorf Towers v. Union Square-14th Street Associates

• Decision Date: 25 February 1993
• Docket Number: SQUARE-14TH
• Citation: 594 N.Y.S.2d 161,190 A.D.2d 636
• Court: New York Supreme Court — Appellate Division
• Parties: The RESIDENTIAL BOARD OF MANAGERS OF ZECKENDORF TOWERS, Plaintiff-Respondent-Cross-Appellant, v. UNIONSTREET ASSOCIATES, et al., Defendants-Appellants-Cross-Respondents, and Joseph Harris, Defendant-Cross-Respondent, and Davis Brody & Associates et al., Defendants, and Kumagai Gumi Co., Ltd., Defendant-Respondent, and Tishman Construction Company, Defendant.

Page 161

594 N.Y.S.2d 161

190 A.D.2d 636

The RESIDENTIAL BOARD OF MANAGERS OF ZECKENDORF TOWERS Plaintiff-Respondent-Cross-Appellant, v. UNION SQUARE-14TH STREET ASSOCIATES, et al Defendants-Appellants-Cross-Respondents and Joseph Harris, Defendant-Cross-Respondent and Davis Brody & Associates et al., Defendants, and Kumagai Gumi Co., Ltd., Defendant-Respondent, and Tishman Construction Company, Defendant.

Supreme Court, Appellate Division, First Department.

Feb. 25, 1993.

Before MILONAS, J.P., and ROSENBERGER, KUPFERMAN, ASCH and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Joan Lobis, J.), entered June 3, 1992, which, inter alia, denied those branches of defendants-appellants' motion pursuant to CPLR 3211(a)(3) and (7) as sought dismissal of the complaint as against defendant Zeckendorf and dismissal of the first, second and eighth causes of action as against the remaining defendants-appellants, granted that branch as sought dismissal of the complaint as against defendant Harris, and granted defendant-respondent Kumagai Gumi Co.'s motion to dismiss the complaint as against it, unanimously affirmed, with costs.

With respect to the first cause of action alleging fraud in the sale of condominium units, the IAS court correctly determined that plaintiff condominium board has standing to make such a claim on behalf of the individual condominium unit owners by reason of explicit statutory authority namely, Real Property Law § 339-dd, under which the Board of Managers of a condominium is empowered to maintain an action on behalf of the condominium owners with respect to "any cause of action" relating to the "common elements of more than one unit" (see, Board of Managers v. Fairways at North Hills, 150 A.D.2d 32, 38, 545 N.Y.S.2d 343).

The IAS court also properly dismissed plaintiff's causes of action for negligence and breach of contract against defendant Kumagai, who contracted solely with the owner for purposes of monitoring the activities of the construction manager, since plaintiff cannot recover solely for economic loss arising out of negligent construction in the absence of a contractual relationship (Lake Placid Club Attached Lodges v. Elizabethtown Builders, 131 A.D.2d 159, 521 N.Y.S.2d 165), and since plaintiff is only an incidental, not intended beneficiary of defendant Kumagai's contract with the owner Board of Managers of the Riverview v. Schorr Bros. Dev. Corp., 182 A.D.2d 664, 582 N.Y.S.2d 258). Absent...