Tiffany at Westbury Condominium v. Marelli Development Corp.

• Decision Date: 29 May 2007
• Docket Number: 2005-07272.
• Citation: 40 A.D.3d 1073,840 N.Y.S.2d 74,2007 NY Slip Op 04624
• Parties: TIFFANY AT WESTBURY CONDOMINIUM, BY ITS BOARD OF MANAGERS, et al., Appellants, v. MARELLI DEVELOPMENT CORP. et al., Respondents, et al., Defendants, and JOHN SCHIMENTI, P.C., Appellant.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 1073

840 N.Y.S.2d 74

2007 NY Slip Op 04624

TIFFANY AT WESTBURY CONDOMINIUM, BY ITS BOARD OF MANAGERS, et al., Appellants, v. MARELLI DEVELOPMENT CORP. et al., Respondents, et al., Defendants, and JOHN SCHIMENTI, P.C., Appellant.

2005-07272.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided May 29, 2007.

Motion by Marelli Development Corp. for leave to reargue an appeal from an order of the Supreme Court, Nassau County, entered June 24, 2005, which was determined by decision and order of this Court dated November 28, 2006.

Upon the papers filed in support of the motion, and the papers filed in opposition thereto, it is

Ordered that the motion is granted, and upon reargument, the decision and order of this Court dated November 28, 2006 (Tiffany at Westbury Condominium v Marelli Dev. Corp., 34 AD3d 787 [2006]), is recalled and vacated, and the following decision and order is substituted therefor:

In an action, inter alia, to recover damages for breach of contract, (1) the plaintiffs appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Roberto, Jr., J.), entered June 24, 2005, as granted those branches of the cross motion of the defendants Marelli Development Corp., Holiday Management Associates, Inc., Gerald Monter, and Elliot Monter which were for summary judgment dismissing the amended complaint insofar as asserted against Gerald Monter and Holiday Management Associates, Inc., the second cause of action alleging fraud insofar as asserted against Marelli Development Corp. and Elliot Monter, so much of the third cause of action alleging breach of the limited warranty based on defects in the heating, ventilation, and air conditioning system insofar as asserted by the plaintiff Tiffany at Westbury Condominium by its Board of Managers against Marelli Development Corp., and the common-law causes of action based on breach of contract insofar as asserted against the defendants Marelli Development Corp., Holiday Management Associates, Inc., Gerald Monter, and Elliot Monter, and (2) the defendant John Schimenti, P.C., separately appeals from so much of the same order as denied that branch of its cross motion which was for summary judgment dismissing the cross claim of the defendants Marelli Development Corp., Holiday Management Associates, Inc., Gerald Monter, and Elliot Monter for common-law indemnification against it.

Ordered that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the cross motion of the defendants Marelli Development Corp., Holiday Management Associates, Inc., Gerald Monter, and Elliot Monter which was for summary judgment dismissing so much of the third cause of action alleging breach of the limited warranty based on defects in the heating, ventilation, and air conditioning system insofar as asserted by the plaintiff Tiffany at Westbury Condominium by its Board of Managers against Marelli Development Corp., and substituting therefor a provision denying that branch of the cross motion, and (2) by deleting the provision thereof granting that branch of the cross motion of the defendants Marelli Development Corp., Holiday Management Associates, Inc., Gerald Monter, and Elliot Monter which was for summary judgment dismissing the common-law breach of contract causes of action insofar as asserted by all of the plaintiffs except for the plaintiff Tiffany at Westbury Condominium by its Board of Managers against Marelli Development Corp., and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiffs by the defendants Marelli Development Corp., Holiday Management Associates, Inc., Gerald Monter, and Elliot Monter.

The plaintiffs in this action are Tiffany at Westbury Condominium by its Board of Managers (hereinafter the Board) and individual owners of condominium units (hereinafter the owners) at Tiffany at Westbury Condominium (hereinafter Tiffany). In an effort to recover damages for the alleged defective design and construction of Tiffany, the plaintiffs commenced this action against, inter alia, the following defendants: Marelli Development Corp. (hereinafter Marelli), which was the sponsor of Tiffany; Marelli's principals, Elliot Monter and Gerald Monter; Holiday Management Associates, Inc. (hereinafter Holiday Management), a prior managing agent at Tiffany, and John Schimenti, P.C. (hereinafter Schimenti), the architect of Tiffany (Marelli, Holiday Management, Elliot Monter, and Gerald Monter are collectively referred to hereinafter as the Holiday defendants).

The Supreme Court erred in granting that branch of the Holiday defendants' cross motion which was for summary judgment dismissing the common-law breach of contract causes of action insofar as asserted by the owners against Marelli on the ground that the causes of action for breach of contract were precluded by the causes of action for breach of the limited warranty. While the limited warranty contained in the owners' purchase agreements precludes their assertion of causes of action for breach of contract based on the common-law implied warranty (see Fumarelli v Marsam Dev., 92 NY2d 298 [1998]; Repecki v Parex Inc., 300 AD2d 292 [2002]; Latiuk v Faber Constr. Co., 269 AD2d 820 [2000]), the...