Tower Natl. Ins. Co. v Kiska Group Ltd.

[*1] Tower Natl. Ins. Co. v Kiska Group Ltd. 2015 NY Slip Op 50141(U) Decided on February 20, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 20, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
15-005

Tower National Insurance Company, a/s/o NV 101 N 5th Condominium Plaintiff-Respondent,

against

Kiska Group Ltd., Respondent-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Gerald Lebovitz, J.), dated June 6, 2014, which denied its motion for summary judgment dismissing the complaint and granted plaintiff's cross motion to amend the complaint.

Per Curiam.

Order (Gerald Lebovitz, J.), dated June 6, 2014, modified to deny plaintiff's cross motion to amend the complaint; as modified, order affirmed, without costs.

We agree that this action, seeking property damages allegedly caused by the negligent design and construction of a condominium apartment building, is not ripe for summary dismissal. The defendant construction manager failed to demonstrate as a matter of law that plaintiff's cause of action is barred by either of the two written releases relied upon by defendant. The January 27, 2010 "Board Release" did not expressly identify defendant as a releasee, and it cannot presently be determined on the prediscovery record now before us whether defendant qualified as an "agent" or "consultant" of the named releasees, as the quoted terms are used in the release. Nor, at this juncture, does defendant fare better with respect to the July 6, 2011 release that defendant did sign, inasmuch as plaintiff was not a party to that release nor shown on this record to be a successor or assignee of the named releasor (see City of Syracuse v Williams, 45 AD3d 1491, 1492 [2007]; Birnbaum v Yonkers Contr. Co., 272 AD2d 355, 356-357 [2000]).

Plaintiff's cross motion to amend the complaint should have been denied because the proposed amendment lacked merit. Plaintiff cannot assert a claim as a third-party beneficiary of a contract between defendant and the condominium owner (150 Berry LLC), since that contract by its express terms negates any intent to permit enforcement by third-parties (see Specialists Entertainment, Inc. v Moore, 115 AD3d 424 [2014]; Board of Mgrs. of Alexandria

Condominium v Broadway/72nd Assoc., 285 AD2d 422 [2001]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: February 20, 2015