Bradley v 50 Orchard St. Assoc. LLC
2012 NY Slip Op 30948(U)
April 9, 2012
Supreme Court, New York County
Docket Number: 104913/11
Judge: Louis B. York
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SUPREME COURT O F THE STATE O F NEW YORK
LOUb B. Y8kK
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JORDAN L.BRADLEY, TSUCHIKO MIYATA and
Index # 104913/11
-against50 ORCHARD STREET ASSOCIATES LLC,
DOUGLAS ELLIMAN, MICHAEL MLJROFF
ARCHITECT LLC, MICHAEL MUROFF and
THE BOARD OF MANAGERS OF 50 ORCHARD
F I L E D 1.;
Defendants 50 Orchard Associates LLC s/h/a 50 Orchard Street Associates LLC, Michael
Muroff Architect LLC, and Michael Muroff move (1)for dismissal of the action, pursuant to
CPLR 3012(b), as to plaintiff Jordan L. Bradley for failure to serve a complaint after the written
demand and (2)for dismissal of the verified complaint as to plaintiffs Tsuchico Miyata and
Bradley Tirpak against moving defendants, pursuant to CPLR 3016(b) and 321 1(a)( l), (a)(3),
a(5) and ( 4 7 ) .
In 2005 plaintiffs Tsuchico Miyata (“Miyata”) and Bradley Tirpak ((‘Tirpak”) entered into a
Purchase Agreement ((‘Agreement”) with 50 Orchard Associates LLC (the “Sponsor”) for the
purchase of their units at the 50 Orchard Street Condominium (“Condominium” or “Property”).
The Agreement incorporated the Offering Plan filed by the Sponsor with the State of New York
in September 2004. Defendants Michael Muroff Architect LLC, the architectural firm, and
Michael Muroff, the licensed architect (collectively the “Architects”) were retained by the
Sponsor to provide design services in relation to the development and conversion of the property
to condominium ownership. The Report of Physical Condition (the “Report”) by the Architects,
integrated into the Offering Plan, made statements about sound insulation between floor/ceiling
systems, and between apartment walls.
Tirpak and Miyata allege that the design of the floors in the condominium units and common
areas, as set forth in the Offering Plan and Report, was defective in that it failed to adequately
prevent noise, sound, vibrations and nuisances coming from one condominium unit to another.
In addition, the building’s construction was not in compliance with applicable provisions of the
New York City Building Code (L‘Code”) concerning noise control in multiple dwelling unit
buildings. Plaintiffs further allege that they made numerous complaints to the Board of
Managers of the Condominium (the “Board”) seeking to remedy the defective conditions, but the
Board failed andor refused to take any measures to repair the conditions or to hold the Sponsor
andor the Architects responsible.
Plaintiffs assert four causes of action against the moving defendant (the first, second, fourth and
fifth causes of action). The first is for breach of the Purchase Agreement against the Sponsor.
The Agreement provided that residential condominium units and common areas would be free of
defects and substantially comply with the terms of the Offering Plan and the provisions of the
New York City Building Code. According to plaintiffs, the units contained substantial material
defects, were constructed with substandard and deficient materials and in violation of the Code.
They were not properly insulated and protected from noise, sounds and vibrations. As a result,
plaintiffs incurred substantial damages, which they evaluate at five million ($5,000,000.00)
The second cause of action is for breach of implied warranty of habitability as against the
Sponsor and the Board.
The fourth cause of action is for misrepresentation against the Architects. Plaintiffs claim that
Architects’ report, incorporated into the Offering Plan, falsely stated that the construction was
completed pursuant to the terms of the plans filed with the Department of Buildings and without
any violations of the NYC Building Code or applicable law in respect of sound insulation. The
Architects were allegedly aware, or should have been fully aware of the falsity of these
statements. Plaintiffs relied upon the Architects’ report and were induced to purchase their unit,
and as result incurred damages.
The fifh cause of action is for negligent misrepresentation against the Architects. Plaintiffs
allege the existence of a special relationship between unit owners and Architects since the
Architects knew and intended, at the time they made the representation in the Offering Plan, that
this plan would be disseminated to the prospective unit owners and that unit owners would rely
on them. The Architects were allegedly negligent in making representations which resulted in
I. Dismissal of Action as to Plaintiff Bradley.
Plaintiff Bradley served the summons in this action but has not served a complaint after
defendants had duly demanded it in writing. Neither plaintiff, nor its attorney, David G. Ebert,
Esq., of Ingram Yuzek, Gainen Carrol & Bertolli LLP, has requested additional time to serve a
complaint. In view of the failure to serve the complaint and default on this motion to dismiss,
the action is dismissed as to Jordan L. Bradley ,pursuant to CPLR 3012(b).
1 . Dismissal of Action as to Plaintiffs Miyata and Tirpak
Defendants S O Orchard Associates LLC s/h/a 50 Orchard Street Associates LLC, Michael
Muroff Architect LLC, and Michael Muroff move to dismiss those causes of action that are
specifically asserted against them.
A. The first cause of action for breach of purchase agreement against the Sponsor.
Defendants contend that plaintiffs failed to allege the specific provisions of the contract upon
which liability is predicated and instead base their claims on alleged misrepresentations in the
Architects’ Report. In their complaint plaintiffs refer to the Purchasing Agreement which in turn
incorporates the Offering Plan providing that Sponsor would sell to the Unit Owners residential
condominium units, and common areas “which were free of defects and which substantially
complied with the terms of the Offering Plan and with the applicable provisions of the New York
City Building Code and rules, statutes, ordinances and regulations and which met their
reasonable expectations to be properly insulated and protected from unreasonable and
unnecessary noise, sounds and vibrations.” (Complaint, at 127). The Offering Plan is annexed
both as Exhibit J to the moving papers and Exhibit F to the opposition to the motion. Paragraph
10 of the Plan contains an obligation by Sponsor to substantially comply with the terms of the
Offering Plan. One of the terms is to provide “sound insulation” which is described in more
detail in the Architects Report and cited at 713 of the Complaint.
Plaintiffs alleged that this obligation was materially breached, and support this allegation with
thee reports by an independent sound-testing firm Acoustilog Inc.(Opposition, Exh. I). In
particular, Acoustilog concluded that the partitions in the building “me deficient and fail to meet
Code requirements.” “Whether a plaintiff can ultimately establish its allegations is not part of the
calculus in determining a motion to dismiss” EBC I, Inc. v Goldman. Sachs & Co., 5 NY3d 1 1,
19,799 N.Y.S.2d 170, 175 ). “[Alny deficiencies in the complaint may be amplified by
supplemental pleadings and other evidence’’AG Capital Funding Partners, L.P. v State St. Bank
and Trust Co., 5 NY3d 582, 591, 808 N.Y.S.2d 573,578 .
Finally, plaintiffs alleged that the substantial, unreasonable and excessive noises sounds,
vibrations and nuisances result in both decline in value of their units and unreasonable
interference with their right to quietly enjoy and inhabit them. Though the claimed damages of
$5,000,000.00 dollars are patently disproportionate to the purchase price of the condominium
units ($700,000.00 and $1,375.000.00), allegations themselves are sufficient to state a necessary
element of a claim for breach of contract.
The documentary evidence presented by defendants does not conclusively refute the allegations
of the complaint. A motion to dismiss is brought pursuant to CPLR 321 1 (a) (1) may be
appropriately granted only where the documentary evidence submitted conclusively establishes
a defense. Leon v Martinez, 84 NY2d 83, 88,614 N.Y.S.2d 972,974 
Defendants contest plaintiffs’ standing to pursue a complaint related to common areas of the
Condominium. They characterize floors as a common element of the building. To the extent
plaintiffs alleged damages to their individual units, and floors between units are arguably part of
such units, plaintiffs are not precluded from pursuing their claims.
Thus, dismissal of plaintiffs first cause of action must be denied.
With their motion to dismiss the complaint, the moving defendanhubmiffed a large number of
documents : copies of the reports by New York City Department of Buildings investigating
complaints submitted by plaintiffs, reports of their own independent experts who analyzed
sound insulation at the Condominium, minutes of the Board meeting, correspondence, as well as
affidavits from a Sponsor’s representative and *e Architects. Pursuant to CPLR 32 11(c), the
court has discretion, with proper notice, to convert the motion to dismiss into
& motion for
summary judgment. The court chooses to exercise this option and invites plaintiffs to respond to
defendants’ motion for summary judgment.
B. The second cause of action for breach of implied warranty of habitability.
Defendants argue that the common-law implied warranty o f habitability is not applicable in the
present case. They point to the Court of Appeals decision in Fumarelli v Marsam Dev., Inc as
based on essentially similar facts. In opposition, plaintiffs contend that Furnarelli did not
eliminate the common-law implied warranty of habitability where General Business law article
36-B does not apply by its terms. Article 36-B covers only condominiums of five stories or less.
rhis argument appears to have meri. and plaintiff’s brief cites Brine in support . “Since Article
36-B is not applicable, the analysis must revert back to the common law. “Brine v 65th St.
Townhouse LLC, 20 Misc 3d 1138(A), 867 N.Y.S.2d 372 [Sup Ct NY Cty 20081. However a
close reading of Fumarelli rehtes it.
In the course of its decision the Court of Appeals emphasized that “ General Business Law
article 3 6 B is a full, effective, and realistic substitute for the protections and rationale
recognized in Caceci v. D Canio Constr. Corp,” Fumarelli v Marsam Dev., Inc., 92 NY2d 298,
302680 N.Y.S.2d 440 . The statute “reflects a realistic intent and effort to occupy the full
field.” (id., 305). Finally, the Court’s distinction between “abrogating” and “derogating” from
the law is centrally relevant.
“Abrogation” means the entire repeal and annulment of a law”; “derogation”
relates to “[tlhe partial repeal or abolishing of a law, as by a subsequent act which
limits its scope or impairs its utility and force” (Black’s Law Dictionary 399 [5th
ed.] ). If General Business Law article 36-B fits the former definition, as we
believe it does, then, the canon of strict construction loses its abstract instructive
value, as applied hire.
Fvrnarelli v Marsam Dev.. at 306. Any suggestion that the common-law implied warranty still
remains in place would mean that Article 36-B only derogated from it. Therefore, plaintiffs
cause of action for the implied warranty of habitability must be dismissed.
C. The fourth cause of action for misrepresentation against the Architects.
Defendants move to dismiss this cause of action on the ground that it failed to plead alleged
misrepresentations with specificity, as required by CPLR 3016, and for failure to state a claim
pursuant to CPLR 321 l(a)(7).
Plaintiffs rely on the following passages in the Architects’ Report:
“Plans call for sound attenuation insulation to be installed between floor/ceiling systems, and
between apartment walls.” and
Sound insulation between apartments is provided by 6’ sound insulation
horizontally between the floor joists and 3 1/2’ sound insulation between
apartments horizontally and vertically. The floor construction will have
approximately 6 ml. of cork underlayment providing resiliency. The estimated
STC rating between floodceiling assembly is approximately 5 1. The estimated
STC rating between wall assembly is approximately 48.
(Opposition, Exh. G, PP. 178- 179).
Defendants find that the words “approximately” and “estimated” disclaim any f r
representations contained in the report. However whether the measurements are precise enough
can be determined only by relevant industry practice, and thus the use of words “approximate”
and “estimated” by the Architects is not in itself detrimental to the plaintiffs position.
The passage cited, however, refers to the future, as is clearly shown in the certification by
Michael Muroff, attached to the Report.
i)sets forth in narrative form the description and/or physical condition of the entire
property as it will exist upon completion of renovation andor construction,
provided that renovation and/or construction is in accordance with the plans and
specifications I examined.
ii) in my professional opinion [the Report] affords potential investors, purchasers
and participants an adequate basis upon which to found their judgment concerning
the description and/or physical condition of the property as it will exist upon
completion of renovation andor construction, provided that renovation and/or
construction is in accordance with the plans and specifications that I examined.
(Opposition, Exh. H).
Plaintiffs failed to allege any representation of k existing material fact. All cited passages
express future promises. “Absent a present intention to deceive, a statement of hture intentions,
promises or expectations is not actionable on the grounds of fraud. Adams v. Clark, 239 N.Y.
403, 146 N.E. 642 . Non-Linear Trading Co., Inc. v Braddis Assoc.. Inc., 243 AD2d 107,
118,675 N.Y.S.2d 5 [ 1st Dep’t 19981 (the alleged misrepresentation relates to future
The Court of Appeals found exceptions to this rule: intent not to perform the promise made
with a preconceived and undisclosed intention of not performing it, constitutes a
misrepresentation. Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954,
956,510 N.Y.S.2d 88 [I9861 (internal quotation marks omitted). However in this case there must
be specific allegations of facts that point to such intent. Failure to plead them with particularity
warrants the dismissal of the claim. Acquisition Co.. LLC v 627 Greenwich, LLC, 85 AD3d 645,
647, 927 N.Y.S.2d 23 [ 1st Dept 20 1 11.No such specific allegations are asserted in this case.
Therefore, the claim of intentional misrepresentation against the Architects is dismissed.
D. The f f hcause of action for negligent misrepresentation against the Architects.
Sykes v RFD Third Ave. 1 Assoc., LLC precludes claims for negligent misrepresentation against
professionals if such misrepresentations were made in the Offering Plan and absent a special
relationship with plaintiffs who allegedly relied on them. Sykes v RFD Third Ave. 1 Assoc.,
u, 370, 912 N.Y.S.2d 172 . In Svkes a claim for negligent misrepresentation
was asserted against the engineering fr based on its report in the Offering Plan. The court held
that plaintiffs have not sufficiently alleged that they were a “ h o r n party OF parties”, to establish
a necessary relation, analogous to privity that imparts a special duty of care. While the
engineering firm obviously knew in general that prospective purchasers of apartments would rely
on the offering plan, there was no indication that it knew these plaintiffs would be among them,
or indeed that they knew or had the means of knowing of plaintiffs’ existence when it made the
statements for which it is being sued. Svkes v RFD Third Ave. 1 Ass~c..
LLC, at 373.
The court emphasized that its analysis applies to other professionals, and the First Department
has since applied it to architects. Heather Darcy Bhandari et al.. Appellants, v Ismael Levva
Architects, P.C., 84 A.D.3d 607; 923 N.Y.S.2d 484 (lstDept’ 201 l).Accordingly, the claim for
negligent representation against the Architects must be dismissed.
For the foregoing reasons it is
ORDERED that the action is dismissed against plaintiff Jordan L. Bradley; and it is further
ORDERED that part of the defendants' motion which relates to the dismissal of the breach of
contract claim against plaintiffs Miyata and Tirpak is converted into a motion for summary
judgment, pursuant to CPLR 321 l(c). Plaintiffs are to respond to the motion within thirty (30)
days of this order. Defendants are to submit reply papers, if any, within fourteen (14) days of the
service of the opposition; and it is further
ORDERED that defendants' motion to dismiss the second cause of action as against the Sponsor
and the Board, and the fourth and fifth causes of action as against the Architects is granted; and it
ODERED that based on documentary evidence the name 50 Orchard Street Associates, LLC is
amended as follows: 50 Orchard Associates, LLC. All future documents shall reflect this change
in the caption.