Tribeca Space Managers, Inc. v. Tribeca Mews Ltd.

• Decision Date: 28 December 2021
• Docket Number: 14931-14931A,Index No. 653292/13,Case Nos. 2019-05525,2020-02333
• Citation: 200 A.D.3d 626,161 N.Y.S.3d 38
• Parties: TRIBECA SPACE MANAGERS, INC., Plaintiff–Appellant, v. TRIBECA MEWS LTD., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 626

161 N.Y.S.3d 38

TRIBECA SPACE MANAGERS, INC., Plaintiff–Appellant,

v.TRIBECA MEWS LTD., et al., Defendants–Respondents.

14931-14931A

Index No. 653292/13

Case Nos. 2019-05525

2020-02333

Supreme Court, Appellate Division, First Department, New York.

ENTERED December 28, 2021

Rivkin Radler LLP, New York (Cheryl F. Korman of counsel), for appellant.

Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola (Jason K. Blasberg of counsel), for respondents.

Webber, J.P., Mazzarelli, Gesmer, González, Rodriguez, JJ.

Orders, Supreme Court, New York County (Gerald Lebovits, J.), entered August 19, 2019, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to quash subpoenas, denied plaintiff's motion pursuant to CPLR 3211(b) to dismiss the ninth and tenth affirmative defenses, denied plaintiff's motion pursuant to CPLR 3025 to amend the complaint, and granted defendants’ motion to preclude at trial any evidence of patent or latent defects for which notice was not provided within the time specified in the condominium offering plan, unanimously modified, on the law, the facts and in the interest of justice, to grant plaintiff leave to restate the breach of fiduciary duty and fraudulent conveyance claims and add a claim against 25 MyRentCo LLC for successor liability, as alleged in the proposed amended complaint, and to deny defendants’ motion to preclude any evidence of patent or latent defects pertaining to Tribeca Mews Ltd's (Sponsor) obligation to construct the building to code and in conformity with plans and specifications for which plaintiff did not provide notice within the times set forth in the offering plan, and otherwise affirmed, without costs. Order, same court and Justice, entered December 17, 2019, which upon reargument, adhered to the court's original determinations, unanimously modified, to conform with this Court's order supra, and as so modified, affirmed, without costs.

Plaintiff is the board of managers of the Tribeca Space Condominium in Manhattan. Defendant Tribeca Mews Ltd. is the condominium sponsor. Under the plain language of the condominium offering plan, Sponsor's obligations to construct the building to code and in conformity with plans and specifications and to obtain a permanent certificate of occupancy must be met irrespective of any disclaimer in its warranty to correct patent and latent defects only if provided with notice of such defects within specified times (see Waverly Props., LLC v. KMG Waverly, LLC, 824 F. Supp. 2d 547, 562–563 [S.D.N.Y.2011] ; see also Tiffany at Westbury Condominium v. Marelli Dev. Corp., 40 A.D.3d 1073, 1075–1076, 840 N.Y.S.2d 74 [2d Dept. 2007] ["Since the offering plan and purchase agreements contained specific provisions as to how Tiffany would be constructed, which are separate and apart from the limited warranty, the owners are entitled to assert common-law breach of contract causes of action with respect to those provisions"]). Accordingly, the court should have denied defendants’ motion to preclude any evidence of patent and latent defects for which requisite notice was not provided within the specified times, insofar as they pertain to Sponsor's obligations to construct the building to code and in conformity with plans and specifications and to obtain a permanent certificate of occupancy. However, the court properly denied plaintiff's motion to dismiss the ninth and tenth affirmative defenses, which may apply to patent and latent defects that are unrelated to Sponsor's alleged failure to meet its obligations to construct the building to code in conformity with plans and specifications, and to obtain a permanent certificate of occupancy.

In the absence of prejudice, leave to amend the pleadings shall be freely given unless the proposed amendment is palpably insufficient or patently devoid of merit ( MBIA Ins....