Caldwell v Two Columbus Ave. Condominium

Caldwell v Two Columbus Ave. Condominium 2007 NY Slip Op 02663 [38 AD3d 474] March 29, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Clara Caldwell et al., Plaintiffs,
v
Two Columbus Avenue Condominium et al., Defendants. Two Columbus Avenue Condominium et al., Third-Party Plaintiffs-Respondents, v DeSimone, Chaplin and Dobryn Consulting Engineers, P.C., et al., Third-Party Defendants-Appellants, et al., Third-Party Defendants.

—[*1] Zetlin & De Chiara LLP, New York (David Abramovitz of counsel), for appellants.

Callan, Koster, Brady & Brennan, LLP, New York (David A. LoRe of counsel), for Two Columbus Avenue Condominium and the Residential Board of Managers of Two Columbus Avenue, respondents.

Brody, Benard & Branch LLP, New York (Matthew F. Rice of counsel), for Two Columbus Associates LLC, New York Urban Property Management Corporation and Urban Associates LLC, respondents.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 25, 2006, which, in an action by the owners of a condominium unit against the condominium for personal injury and property damage caused by infiltration of water into the unit, insofar as appealed from, denied the motion of third-party defendants-appellants structural design engineers to dismiss the condominium's third-party complaint as against them for failure to state a cause of action, unanimously reversed, on the law, with costs, the motion granted and said third-party complaint dismissed. The Clerk is directed to enter judgment accordingly.

The third-party complaint, liberally construed (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]) and as amplified by the report of the engineer retained by the condominium, provides no detail of any type that the water infiltration was caused by structural [*2]defects attributable to the design of the building. Thus, the complaint fails to state a cause of action against third-party defendants-appellants and the motion to dismiss should be granted. Concur—Andrias, J.P., Friedman, Buckley, Sweeny and Catterson, JJ.