Vandewater & Lapp v. Sacks Builders, Inc.
| Decision Date | 27 April 1959 |
| Citation | 20 Misc.2d 677,186 N.Y.S.2d 103 |
| Parties | VANDEWATER & LAPP, Respondent, v. SACKS BUILDERS, INC., and Joseph Sacks, Appellants. |
| Court | New York Supreme Court — Appellate Term |
Maurice Brandt, Cedarhurst, for defendants-appellants.
Charles E. Lapp, Jr., Far Rockaway, for plaintiff-respondent.
Before DI GIOVANNA, PETTE, and BENJAMIN, JJ.
In 1953 plaintiff, licensed engineers and surveyors, prepared a plot plan and drainage map for Weinstock, the then owner of the land which is the subject of this action. The map was certified by the plaintiff and approved by the various Municipal Departments and filed in the County Clerk's office.
Thereafter the property was sold to Sylkay Realty Corp., which in turn conveyed to the defendants in 1959. The defendants proceeded to construct and sell houses on the land and made deposits with the Village of Hewlett Harbor as security for the improvement of the street known as Pleasant Place shown on the filed plan and map, and then obtained building permits. Construction was commenced by the defendants in accordance with the elevations and grades certified by the plaintiff on the aforesaid map. It became apparent during the course of construction that if the grades and elevations supplied by the plaintiff were to be followed, the completion of the road at those grades and elevations would leave a pre-existing house owned by a third person in a position to suffer from all the run-off water on to its premises. The third person complained to the Village Authorities and as a result the latter rescinded their prior approval of the aforesaid map and directed the defendants to prepare and file a new drainage plan. The Village Authorities also refused to issue certificates of occupancy to the defendants unless and until the property owned by the defendants was physically brought into conformity with new and approved drainage plans indicating corrected elevations.
Defendants hired the plaintiff to prepare the corrected maps. In this action compensation is sought for the value of the work, labor and services performed in preparing the corrected maps. The defendants have counterclaimed demanding damages resulting from the errors in the prior map causing the defendants to expend money to correct the errors.
In the court below the counterclaim was dismissed upon a ruling that the statute of limitations had run against the counterclaim because it was based on a negligence theory and not on a contract theory. For all practical purposes, the question was presented to this Court as to whether the counterclaim stated facts sufficient to constitute a cause of action. Resolution of this question depends upon a determination as to whether the cause of action set forth in the counterclaim is one in negligence or for breach of contract.
The defendants contend that the contract between the plaintiff and the original grantee, Weinstock, whereunder the original map was caused to be filed, entitled them to be considered a beneficiary of that contract within the meaning of Lawrence v. Fox, 20 N.Y. 268. The plaintiff contends that there was no privity of contract with the defendants and that consequently no liability can be predicated by reason of the filing of the erroneous map. It has been held that parties to a contract must have intended that a third party should benefit from it in order that the theory of Lawrence v. Fox, supra, could be applied. Morgan v. Ebco Machine Corp., 239 App.Div. 346, 267 N.Y.S. 369; Skinner Bros. Manufacturing Co. Inc. v. Shevlin Engineering Co. Inc., 231 App.Div. 656, 248 N.Y.S. 380. I believe that the pleaded evidentiary facts, which for the purposes of the motion must be deemed to be true, and the cases interpreting Section 334 of the Real Property Law, which is similar in purport and effect to Section 334-a which required the recording of the plan in this case, has the effect of constituting the defendants members of a class intended to be benefited by the contract entered into between the plaintiff and the original grantee.
Section 334-a substantially requires that a developer of land in Nassau County for division into lots, plots, blocks or sites, with or without streets, file a map containing courses, measurements, and the names of adjoining property owners with sufficient definiteness. The Clerk of the County of Nassau is required to file that map upon receipt thereof. A provision is set forth subjecting an owner of lands to a penalty because of a failure to file such map.
While no judicial interpretation of that section appears to have been made, in Matter of City of New York...
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...that in factual situations similar to the instant case recovery has been granted under this theory (E.g., Vandewater & Lapp v. Sacks Buildres, Inc., 20 Misc.2d 677, 186 N.Y.S.2d 103) we believe the fundamental reasoning underlying the tortious misrepresentation theory more nearly accommodat......
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...East 177th St., 239 N.Y. 119, 145 N.E. 903; Jack Homes, Inc. v. Baldwin, 39 Misc.2d 693, 241 N.Y.S.2d 847; Vandewater & Lapp v. Sacks Builders, Inc., 20 Misc.2d 677, 186 N.Y.S.2d 103; 3 Rathkopf, supra, p. 71--122). By dialectic analysis, plaintiff concludes that local governments lack the ......
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