The 20 Pine St. Homeowners Assn. v 20 Pine St. LLC

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The 20 Pine St. Homeowners Assn. v 20 Pine St. LLC 2012 NY Slip Op 31302(U) May 2, 2012 Sup Ct, NY County Docket Number: 102920/11 Judge: Paul Wooten Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 511712012 SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY PART HQN. PAUL WOOTEN, Justice THE 20 PINE STREET HOMEOWNERS ASSOCIATION and DANIEL JOSEPH MCCORMICK, CLAUD10 BARBER0 MONTAGNA, AMlR BABAK BEHNAM, W Z E M BEHNAM, 20 PINE, LLC, CARLA E. BUFFULIN, GUlLlANO INFANTOZZI, TRUST FBO HENNING F BLOMBACK AND REVOCABLE TRUST FBO CHIANG CHING, HEATHER CURATOLO, ANDREW WISNEWSKI, LUCIAN0 D'ADAMIO, GIOVANNA D'ANDREA, FREDERICO DEVERA, PIU BANERJEE, ARNAB DEY, LOUIS DILORENZO, CHARISSE MELOTO, APURVA DIXIT, RUPALI DIXIT, LARRY J.B. EVANS, PHYLLIS A. EVANS, NANCY H FOGARTY, STACEY L. WAEFELE, TAREK MALLABA, NAHED HAbLABA, THOMAS HEINZ, ROSSANA SHOKRIAN, EL HEN-TOV, WILLIAM HYMAN, NANCY HYMA KARICOD, MONICA A. PAREKH, THOMAS A. KELLER, , TRUSTEE OF THE THQMA$ A, KELLER 1 TRUST, CHARLES RICHTER KING, BARB MAXIM A. KOGAN, WILLIAM D. KdULMc KOULMENTAS, SAMUEL DREW LANG, GRA BERGNER, ROGER LGFEVRE, MARC SU'rlrJ MACKAY, NATALIE MARKOFF, JOSEPH PLU MASSAND, SEEMA MASSAND, ERICA K. OLIVGIRA, HELGA PAULSEN, KEVIN A.RELIHAN, CA ERIK REYNOLDS, MARIA CLAUDIA R IBE WERNER STANZL, ALVIN L. ROYSE, RAH L. SMQKRIAN, AN T"RUsT DATED1 PARTNESHIP, NEIL S. SIMON, JOYCE KCEI BRADLEY SOLOb,4ON, JOMAN STYLANDER, , 7 102920l11 INDEX NO. 007 MOTION SEP. NO. /,. and SUZlE H. KIM and'LAURA SALTZMAN, Plaintiffs, -against- 29 PINE STREET LLG, 20 FIVE MANAGERS, BOYMELGREEN FAMILY, LLC, JESHAYAHU a/k/a SHAYA BOYMGLGREEN, AI PRQPERTIES A N 4 DEVELOPMENTS (USA) CORP., PINCHAS COWEN, S RICHARD MARIN, TAMlR KAZAZ, AFRICA I INVESTMENT^, I V ~ E R N A T I O N A ~ LIMI 1997 I S M E L INVESTMEhTS LIMIYLD, GIORGIC) ARMANI CASA, CRlSTlNA BENARDEAU, KkVI CLOSERS CONSULTING, INC., GkUZEN SAMTON, LLP, EN I , [* 2] MICHAEL GELFAND, COSEWTINI ASSOCIATES, INC., BOYMELGREEN DEVELOPER'S LLC a/k/a BOYMELGREEN CONSTRUCTION, COPPER CONSTRUCTION, LLC, JIM PERSHING, WONDER WORKS CONSTRUCTION & DEVELOPMENT CORP., ISRAEL BERGER AND ASSOCIATES, LLC, JDP MECHANICAL, INC., TRANE USA, INC., 5 STAR ELECTRIC OF LONG ISLAND, INC., RAEL AUTOMATIC SPRINKLER COMPANY, INC., CLASSIC FIRE SYSTEMS, INC., PACE PLUMBING CORP., LEONARb POWERS, INC., DELTA SHEET METAL CORP., EAGLE ONE ROOFING CONTRACTORS, INC , URBAN RECREATIONAL, INC., THE BOARD OF MANAGERS OF THE 29 PINE STREET CONDOMINIUM, ARI SCHWEBEL, ANDY ASHWAL, GENNYENE BRUGGER, DAMIEN STEIN, ANDREW FAULDS, GABE RUBIN, RENA BATASH, GETZY FELIG, PAZ KASPI, LORI LEvlNF, GAL BACK, LIPON HEN-BRENNER, JACK JEh/lAt, JOSEPH DAMANTI, ADAM BIENELPE, AND MICHAEL SHVO d/b/a SHVO MARKETING, + Defendants. f . Notice of Motion/ Order to Show Cause Angwering Affidavits I 1 - Affidavlts - Exhibits ... - Exhibits (Memo) I PAPERS NUMBERFD I 2 3 Replying Affldavlts (Reply Memo) them pursuant to CPLR 321 1(a)(l)and (7) and CPLR 3016(b) on the basis that plaintiffs fifteenth cause of action as against them fails to plead fraud with the requisite specificity. In I motion sequence 006, deferldarrts Gruzen Sirmtgnf LLP ahd Michqel Gelfand (Gelfand) move I to dismiss the complaint as asserted against it, pUrSyant to CPLR 321 1(a)(l),(3),(5) and (7). Gelfand also moves pursuant to CPLR 214(6). P a g e 2 o f 22 ~ I I [* 3] Defendants move ip motion sequence 007, pursuant to CPLR 321 l ( a ) ( l ) , (3), and (7) (8), ( I ) dismiss the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth to: thirteenth, sixteenth and seventeenth causes of action asserted as against defendants 20 Pin Street LLC (Sponsor), 20 Pine Street Managers, LLC, Boymelgreen Family LLC, Jeshayahu Boymelgreen a/k/a Shaya Boymelgreen (together, Boymelgreen), AI Properties and Developments (USA) Corp. (AI), Pinchas Cohen (Cohen), Richard Marin (Marin), Tamir Kazaz (Kazaz), Africa Israel Investments International 1997 Limited and Africa Israel Investments Limited (together, Africa Israel entities) (collectively, the Nw-Sponsor defendants), based on lack of standing and documentary evidence; (2) dismis5 th its entirety asserted as against Africa Israel, based on lack of personal jurisdictipo; (3) dismiss the complaint in its entirety as asserted against the Non-Sponsor defendants, b)qaedon plgintiffs' failwe to make any specific allegations against such defendants aed plqir)tiff$' inability to pierce the corporate veil; (4) dismiss thQ second, third, fourth and eighth Calrses Of action, as plaintiffs are not intended third-party beneficiaries of the contracts: (5) dismiss the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, thirteenth, sixteenth and seventeenth causes of action as baing duplicative of the first cause of action for breaoh Q I fifteenth, sixteenth and seventeenth causes of action for failing to partiGularize such claims; (7) ' I under the offering plan; (8) dismiss the sixteenth cause of-action because plaintiffs d q not meet the statutory threshold under General Business Law (GEL) $ 349; (9) dismiss the eighteenth cause of action for failing to plead the elements of a converSion; and ( I O ) dismiss the eighteenth and nineteenth causes of action becausq plhintjffs fail to plead the necessary elements to find individual Sponsor board member defendants liable.' I The plaintiffs and the defendants eaGh designate the named defqndants differently, sd, for the sake of simplicity, the court is using the group designatlohs appearing Aibot@. Page 3 of 22 1 3 [* 4] In motion sequence 008, defendant Trane U.S. Inc. (i/p/a Trane USA Inc.) (Trane) moves to dismiss plaintiffs' complaint as asserted against it pursuant to CPLR 321 1(a)(l),(3) and (7). In an Interim Order dated March 5, 2012, the Court gave notice to all parties that all pending motions to dismiss before the Court, including pending motions in Room 130, may be treated and converted as motions for summary judgment pursuant to CPLR 321 l(c), The Interim Order gave the parties an opportunity to submit papers to the Court in support of or in opposition to the conversion, by March 21 , 2012. The following papers were received by the n ( 9 1 C w r t regarding the conversion: defendants Del@ Sheet Metal Corp. and Classic Fire System$ submitted an affirmation in support; defendants Israel Berger and Associates, LLC and Cosentini Associates submitted papers naither in o'pposition or ip support of the conversipn, yet I requested that the Court not bar them from filing a succ ive summary judgment motion, if necessary; defendants Eagle One Roofing Contractors, Inc. and Rae1 Automatic Sprinkler , Company, Inc. submit an affirmation in support of the converqign; plqivtiffs submit an affirmation and memorandum of law in opposition to the C ~ q r t ' s conversion on the bilsis that, n given thd she'et' doluhe of' inter aha, the Court provided inadequate hPticpof'the con ' motion papers of the outstqnding motion paper$ as well 4s on the basis that " b n 44 "id in bnru .p 5 . I/ r respeclive mbt t { h i stand Gruzsn Sdmton LLP and Michael Gelfand submitted res ive papers after March. 21, 2012 deadline, and as a result their papers were not cQnsiderod by the Court. Additionally, the Court is in receipt pf various letter' corrkppondenqe from the parties in opposition to plaintiffs' submission of an affirmati hd memorandup of law in I opposition to the Court's conversion of the pending motions to di's'rniss', on the basis that plaintiffs are attempting to relitigate or rebrief the substance of the motions that were previously submitted to the Court. P a g e 4 o f 22 I I [* 5] BACKGROUND Plaintiffs are owners of condominium units in defendant 20 Pine Street Condominium, and allege that they represent the Homeowners Association (HOA) thereof. This action is asserted against the Sponsor, its principals, architects, engineers, contractors, interior designers and selling agent for damages allegedly sustained by plaintiffs as a reFult of defendants failure to construct the condominium in accordance with the promises appearing in the offering plan, the plans and specifications filed with and approved by the Department of Buildings (DOB), the New York City Building Code (Building Code), and local industry standards. Plaintiffs contend that the failure on the part of defendants to construct the condominium in accordance with the offering plar, and specifications has resulted in numerous construction defects, which have caused and continue to cayse life, safety and health hazards to the residents of the condominium (Complaint 196-204), Further, plqihtiffs qrgue that the Sponsor-controlled Board has failed to tqke any action to remediate the situqtion. I Pursuant tQ the offering plan, the Sponsgr can retain control of the Board of Directors (Board) until it obtain5 zt perrnghen According to the offering plan, as incorporated into the purchase agreement? qnfered into * 1 een the Spon tha I, upon the isSuance 1 [l]mprovement of a permanent certificate of occupancy for the Ihildipg, be in Codpliance With all applicable zoning codes of the city of New York and other applicable regylations, codes and goverrrmerrtal requirements (Complaint 7 129); I 2. Sponsor will, at Spdhsor s sole cost and expense and with reasonable diligence, perform or cause to be performeq such work, and will supply or cause to b4 supplied $11 P a g e 5 o f 22 I [* 6] materials, which are necessary to complete the renovation of the Building substantially in accordance with the description contained in the section of the Plan entitled Description of Property and Specifications (Complaint 7 130); 3. [Qluality of construction shall be comparable to local standards custOmary in the particular trade and in accordance with the Plans and Specifications for the Building (Complaint r[ 132); 4. Sponsor has an obligation to correct material defects in the renovation or construction of those common elements or the units which are required to be renovated or r r cgnstructed in accordance with the plans and specifications (Complaint I I , . I 7 136); 5. Sponsor will correct or cause to be corrected patent defects in the rqnovation or construction of the Common Elements or Units or in tha instlallatiorr or operation of any mechanical equipment therein (Complaint 7 137); 6. Sponsor will correct or cause to be dor;reCted Idtent defects (that is, defects which I are not visually ascertainable) in the construction of the Building and the Unit$ or in the installation of operation of any mechanical equipment therein ... (Complaiht r[ 138 I I 1 7. Sponsor shall have the obligqtiop to repair or replace .., Y ~- t any defective item or 7 139); and 8. If only a temporary certificate of occupancy for the Building or a Unit for which title the I q q l has Closed shall have been is$t@d,the Sponsor will use reasonable diligenc I bqilding department to renew continuously the temporary certificate of occupancy until the permanent certificate of occupancy covering all Units offer undef this Plan shall have beet issued. Sponsor will, at sponspr s sole cost and expense, do and perforrrl or cause to be P a g e 6 o f 22 I I I r, [* 7] performed all work and supply or cause to be supplied all matFriaIs necessary to renew the temporary certificate of occupancy and to obtain such permanent certificate of occupancy ... . Sponsor anticipates obtaining a permanent certificate of occupancy for the Property no later than two years from the date of closing of title to the First Unit that is closed under the Plan and shall use all reasonable efforts to obtain same" (Complaint 7 134). Additionally, the architect's report, prepared by defendant Gruzen Samton Architects Planners & Interior Designers, LLP, s/h/a Gruzen Samton, LLP (Gruzen), allegedly made specific representations concerning the quality of the construction and materials that would be used, which plaintiffs contend have not been met. Plaintiffs also state that the Sponsor made certain promises concerning the interior design of the condominium, indiaatiyg an extremely upsc;lle design, which plaintiffs assert have not been met. Plaintiffs say that qonstruction defects with tpe building were evident from the time that they gained psssession of thQir units, and that they gave written notices to the Sponsor qndlor the Sponsor's representatives about these defects. Plaintiffs contend that the Sponsor and/or its reprewntatives acknowldged receipt of these notices. Additionally, during March anti April of 2009, plaTdifl letters: I construction defects (Motion Seq, 001, ex PC (Rand) to perform a physical inspection and PI; ondition gf the building. I Awording to plaintiffs, Rand issued a repOrt that recommended various courses of action to remedy the defects, estimated the cost of the recommendediremediation, and recommended that further investigation performsf I I d on indications Qf latent defects. *i I Plaintiffs conteed that the Board refused to remediate the defects identified by Rand or to share the Rand report with the unit owners. Plaintiffs say that only ap oral summary of the Rand report was provided to them, which indicated a large number of problems that needed to J In response to tH II [* 8] be addressed at a cost of approximately $5.6 million, Plaintiffs grgqq thqt, while the B w d is 3 controlled by the Sponsor, the unit owners lack the information and resources to correct the construction problems with the building. According to the condominium s by-laws, the Sponsor can retain control of the Board until the later of (I) closing of title to residential units having the an aggregate common interest of at least 95% of the total common interest, or (2) the issuance of a permanent CO (Complaint 7 145). Plaintiffs state that, to date, the Sponsor has sold nearly 95% of the total common interest, but has failed to file for a permanent CO, but has continually sought and received temporary COS. The verified complaint alleges 19 cauqes of action: (1) breach of contract (the purchase agreement) asserted as against the Sponsor and the controlling Sponsor defendant$, for construction defects; (2) breach of contract (the architeqtural agleement) asserted as against Gruzen, Michael Gelfand (Gelfand), Sponsor and Sponsor-controlled defendants, for construction defects; (3) breach of contract (the engineering agreement) asserted as against Sponsor, Sponsorcontrolled defendants and Cosentini Associates, Inc. (Cosentini), based on construction defects; ..Y (4) breach of contract (the contraotors agreements) as3erted as against Boymslgreen, Copper , LLC (Coppetl, ~8i Wrshi 4yu P r Development CQrp (Wonder Works), Closer Consulting, Inc (Closer), Israel Berger and Associates, LLC (Berger), JDP Mechanical, lnc. (JDP), Trank USA, INC. (Trane), 5 Star Electric of Long Island, Inc. (5 Star), Rae1 Automatic Sprinkler Company, Iqc. (Rael), Classic Fire Systems, Inc (Classic), Pacg Plumbing orp. (Pace), Leonard owers, Inc. (Powers), Delta Sheet Metal Corp. (Delta), Eagle One Roofirig Cqntractors, Inc. (Eagle), U r b m Suburban Recreational, Inc. (USR) (collectively, the contractor defendants), the Sponsor and the t Sponsor-controlled defendants, fbr coristructioh defect$; PageBof 22 I I , *I* mi , [* 9] (5) breach of express warranty asserted as against the Sponsor and the Sponsor-controlled ) I defendants; (6) breach of common-law implied housing merchant warranty, asserted as against the Sponsor and the Non-Sponsor defendants; (7) breach of contract asserted as against the Sponsor and the Non-Sponsor defendants for failing to obtain a permanent CO; (8) failure to comply with General Business Law (GEL) 55 352-e(2)(b) and 352(h), asserted as against the Sponsor, the Non-Sponsor defendants, Gruzep, Gelfand and Cosentini; " &I, I ,1 (9) negligence, asserted as against the Sponsor, the NQn-Sponsor defendants, Gruzen, Gelfand and Cosentini; (10) negligence asserted as against the $pQvsQr,the non-Sponsor controlled defendants and the contractor defendants; (I) professional malpractice, asserteq as agAinst Gl'uten and Gelfdnd; I (12) professional malpractice, asserted as against Cosentini; (13) fraud and negligent misrepresentation, aqserted as ilgainst the Sponsor and the Non- 8ppm o r d e k ndantS k (14) fraud and negligent misrepresentation, asserted a$ against Gryzen and Gelfand; 4 Mi @$ifiJ* I I 1 Bergin (Bergin) (collectively, the marketing.doqign defendaots) and Michael Shvo d/b/a Shvo Marketing (Shvo); (16) violation of GEL 5 349(a), asserted as against the Sponsor and the Non-Sponsor defendants; I (17) violation of 15 USC 5 1703(a)(2), asserted as,ggainst the Sponsor and the Noq-Spongor defendants ; (18) conversion, asserted as irgainst the condominiufi Board; and Page 9 of 22 I 1 , i r I [* 10] (19) breach of fiduciary duty, asserted as against the condominium Board. STANDARD CPLR 321 1(a), provides that: a party may move for judgment dismissing one or more causes of action asserted against him on the ground that: [I] defense is founded upon dwurnentary evidence; A [3] The party asserting the cause of action has not legal capacity to sue; . . [5] the action may not be maintained because of . . . statute of limitations [7] The pleading fails to state a cause of action; [8] The court has not jurisdiction gf the person of the defendaet I. When determining a CPLR 321 1 (a) motion, we liberally construe the complaint and accept as true the facts alleged in the complailnt And any sqbmissions in opposition to the . dismissal motion (51I W. 232nd Owners C ~ r p v Jennifer Realty Go., 88 NY2d 144, 151-152 v Martinez, 84 NY2d 83, 87 [ 1994Il; Sokoloff v Harriman Estates Ddv. Corp., [2002], see Leon 96 NY2d 409 [2001]; Wieder v Skala, 80 NY2d 62b [1992]). We also accgrd plaintiffs the benefit of every possible favorable inference ((571 W 232nd Owners Corp. 98 NY2d at 152; SokolQff v Harriman Estates Dev. CQrR, I Pursuant to CPLR 321 l ( a ) ( l ) , in w e , the document * (Br onxville Knolls v Webster Town Cfr, Pa Dernas v 325 W. End Ave. Corp., 127 AD2d A76 [ l s t Dept 19861). A CPLR 3211(a)(l)motion may be appropriately granted only where the dowmentary evidence Marly refutes plaintiff s factual allegations, conclusively establishing a d@p$e as /nd Co., 98 NY2d 314,326 [2002]). r matter of law (Goshen v Mut, Life Y I A motion to dismiss, pursuant to CPLR 321 1(a)(3), will be granted when the movant establishes that the party asserting the claim lacks the legs1 capdcity tg $we, The issue Qf legal Paqi ,10 ,of 2 2 , I ) [* 11] capacity does not implicate the jurisdiction of the court; it is merely a ground for disyisqal as timely raised as a defense (Security Pac. Natl. $ank v Evans, 31 AD3d 278, 279 [I $t Dept 20061 [international citation omitted]). The doctrine of legal capacity concerns a litigant s power to appear and bring its grievance before the court (Security Pac. Natl. Bank, 31 ADSd at 279). Upon a CPLR 321 1(a)(5) motion to dismiss a complaint as time barred under the applicable statute of limitations, the initial burden is on the defendant to show that the claims against him are time barred by the applicable statyte of limitations (See Tristaino v Teitler, 24 Misc3d 1244[A] [2009]). Then, the burden shifts to the plaintiff to establish that the relation back ~ doctrine applies ( i d ) . Concerning a 321 1(a)(7)m s for failure to state a cause of action, the question for us is whether the requisite allegations Qf any valid cause of action cognizable by the stat@courts cat^ be fairly gattwred from al e gverments (Folqy v I D Agostino, 21 AD2d 60, 65 [ I S t Pept 19641,q ng Condon v Associated Hosp. ,$en/., 287 NY 4 1, 414 [1942]). In order to defeat q pre-answer motion to dismiss pursuant to CPLR 1 321 1, the opposing party need only assgrt facts of an evidentiary nature which fit within any cognizable legal theory (see [d stl,Dept 19991). \ rkers Trust Co., 262 AD2d 188 _ < I 4 Tv ion te record and to come forward with any evidoqce that could possibly be considered (Bee State Bd. of Equalization and Assessment v kerwick, 72 AD2d 292, 301 [3d Dept 19801 [ the court must notify the parties of its intention to make B summary determination, t h u s eo3 g them ta $ubmit additional ptoof in support of their pdsitions ], affd 52 NY2d 557 [1981]; cf. Nonnon v City of New York, 9 NY3d 825, 827 [2007] [Court improp4rly convdrted motion to dismiss into one for summary judgmerlt, Page 1 1 of 22 t <* I , [* 12] without notice to the parties and an opportunity to submit additional papers]; see Siege], N.Y. Prac. 5 270 [4th ed. 20071 [ [t]hiS notice requirement therefore offers the parties an opportunity to submit everything they ve got ]). After due notice given to the parties, and upon a review of the submissions, the Court will treat the herein motions to dismiss as summary judgment motions, pursuant to CPLR 321 1(c). Furthermore, in deciding this motion the Court may, in its discretion, search the record and grant summary judgment to non-moving parties (see CPLR 3212(b); see a l w Atiencia v MBBCO /I, lnc., 75 AD3d 424 [ I s t Dept 20101 ( A court, in the course of deciding a motion, is empowered to search the record and award summary judgment ., to a nonmoving party ]; Mini Mint lnc.v Citigriup Inc., 83 AD3d 596 [ I s t Dept 201 I]; Brooks v City of New York, 212 AD2d 435, 435 [Ist Dept 199Sl). Plaintiffs 1 Cause of Action Asserted Against the SbOhsor The portion of defendants mdtion sqeking to dikmiss the first cause of action fpr breach of contract asserted as against the Sponsbr is denied. Atthough it is we ll-settled thdt individual I unit owners lack standing to seek damages for injury to the building s cornmm elements the offering plan specifically grants such a right to the individual unit owners under circumstances in h-the oondominium Board fails t I Managers af the Chelsea I 9 Condominihm r I i Y v Chklsea I 9 ASSociates, 73 AD3d 581 , 681 [ l s t I I P I ) f 20101[internal citatio enue Manhattan Company, 229 P$rfhgrship, 50 AD3d 503 [ I s t Dept 20081; De AD2d 343 [ I s t Dept 19961). It is the defendants position that the plaintiffs lack standing to assert causes of action for breach of contract against the Sponsar becgude th I 1 . construction defects. However, plaintiffs claim that such actions by the Spoh Board have been both unreasbnable and ineffective. It? viehiving the allegations of the complaint - , and opposition papers as true and in a light most favorable to plaintiffs, the I Page 12 of 22 1 2 I I [* 13] conclude that the plaintiffs lack standing pursuant to the rights granted to uni\ owners under the I , terms of the offering plan. Plaintiffs' I", 2", 3rdand 4'h Causes of Action Asserted Against the Non-SponsQr Defendants The portion of defendants' motion seeking to dismiss the first, second, third and fourth causes of action for breach of contract asserted as against the Non-Sponsor defendants is granted Plaintiffs claim that they have standing to assert a cquse of action for breach of contract against the Non-Sponsor defendants as third-party beneficiaries of the Sponsor-affiliated \ contractors' contracts. In support of this contention Alfred Condominium v Carol Mgt., which found that individugl condominium unit owners had standing to sue the building's contractors as third-party ikiwies of the contraqt[ between t the contractors and the Spoqsor (214 AD26 380 [ l s t D I). as its progeny, involvqd contl'acts in which the eventual'pur SerS of the uhits wer.6 specifically However, that case as well stated to be beneficiaries pf the agreements (See DiamQnd Castle Partners IV PRC, L.P. v IAC/lntwActiveCorp, 82 AQ3d 421 [ l s t Dept 201 I]), The Court firids t Condominim and its prqgeny because none of the co Board of Mgrs. of the L.P., 82 AD3d at 421). hbsent w c h express contractual I$n$page, or alleged dire-$ cantact between plaintiffs and the Non-Sponsor defendants, the it owners lack standing to assert l claims againFt the cont Dept 20091, offd 1 ee e,g. Sykes v RFD Th o [ ~ O I O I see also Westpa , rJY2d 16 [198S]). Accordihgly, pldintiffs' first, second, third arrd fourth causes Qf action are I dismissed as against all defendants except for thb Sponsbr. Page 13 of 22 * , [* 14] Plaintiffs 2nd, and 4 h a u s q o f Action Asserted Against the Sponsor 3rd C I * Similarly, and for the same reasons as just discussed, the branch of defendants motion seeking to dismiss the second, third and fourth causes of action asserted as against the Sponsor is granted. Since the plaintiffs are not third-party beneficiaries of the architectural, engineering or construction contracts, they have no standing t4 sue any party to those agreements, and these causes of action are dismissed (seo e.g. Sykes, 15 NY3d at 370). Plaintiffs 51h and 6 h Cause of Action The branch of defendants motion seeking to dismiss the fifth and sixth causes of action w 7 asserted as against the Sponsor and the Nqn-Sponsor defendants, for breach of dn express warranty and breach of the common-law implied housing merchant warranty respectively, is granted. In opposition, plaintiffs rely on Cgceci v Di Canio C o p $ h d i o n Cprp,, which held that a builder is subject to a housing meratihnt warrdnty to the purchaser of the premises (72 NY2d 52 [I 9881). However, in analyzing Caceci in light of GBL Art, 36-6, which superceded CacecTs holding for buildings with no more than five stories, the Capo of Appeals held, in Furnarelh v Marsam Development, Inc., a ca$ei, olvimg a swit between0 $er 06 a luxu condominium and the condominium s seller, that a sellqr could exclude express and implied r Such specific limitation of warranties appears in the . Therefore, the fifth and sixth causes of action are dismissed (see Gallup v SurnrnerSet Homes, LLC, 82 AD3d 1658 [4th Dept 20111). Plaintiff$ 7 h Cause of A.ction The branch of defendants motion seeking to dismiss thd $ ~ u e n t h cause of action asserted as against the Sponsor and the Non-Spoflsor defbpdants for breach of contract for failing to obtain a permanent CO is denied with respect to the SpCihSqr, aRd is granted with Page 14 qf 22 I 1 I I [* 15] respect to the Non-Sponsor defendants for the reasons stated by the Court in its discussim of I plaintiffs second, third, and fourth causes of action. Plaintiffs 8 hCause of Action The portion of defendants motion seeking to dismiss the eighth cause of action for violation of GBL 5s 352-e (2)(b) and (h) asserted as against the Sponsor, the Non-Sponsor defendants, Gruzen, Gelfand and Cosentini is granted. GBL 9 352 et seq., known as the Martin Act, vests to the Attorney General exclusive authority to enforce its provisions and implement regulations (see Kerusa Co. LLC v W70U575 Real ¬state Ltd. Partnership, 12 NY3d 236 OOS]), and the [2009], Kralilr v 239 E 7gthSt. Owners Cor,., 5 NY3d 5 of action under the statute (Kerusa Co. LLC, 12 NY3d at 244). Accordingly, plaintiffs eighth cause of action must be dismissed. Plaintiffs gthand 1Oth C;ru$es sf Actipn I The branch of defendants motion seeking to dismiss the ninth and tenth causes of adtron asserted as against the Sponsor, Nnn-Sponqor defendant$, Gruzen, Gslfand, Cosentrni and the contractor defendqnts for negligewe is granted. of the condominium and, as su ther than tort (see, n I AD3d 1284 [2d Dept Further, a contractor generally does not owe B dut P/rnrnins v Tishrnan Canstruction Corp., 9 Ab3d 6 circumstances: (1) dischqrging a contractual 1 harm, (2) the non- 1 third party suffered contractors continuirig performance of a contractual obligation; or party has displaced the ather ph-ty s duty to maintain th 1 (3)wher [* 16] Contractors, Inc., 75 AD3d 463 [ I s t Dept 20101). However, none of those circumstances are I 1 applicable to the case at bar. Accordingly, plaintiffs ninth and tenth causes of action are dismissed. Plaintiffs 11Ihand 12thCauses of Action The portion of defendants motion seeking to dismiss the eleventh and twelfth cquses of action asserted as against Gruzen, Gelfand and Cosentini for professional malpractice is granted Although there is no privity between plaintiffs and Gruzen, Gelfand or Cosentini, a claim L 1 for professional malpractice may be asserted abSent privity of contract where the relationship of the parties is so close qs tp approach that of privity (Tarnbrands, h c . v Lockwo~d Greene t Engineers, Inc., 178 AD2d 406, 408 [+I Dept 19911[intern?! quotation marks and Gitation omitted]). However, in the irlstant matter, no such close relationship has been alleg ed, and the causes of action and injukies claimed are dupliGat,ive of the brGach of contract claims. Therefore, plaintiffs eleverlfh $pd twelfth c$u$es gf actisrr are dismissed. Plaintiffs 13 h, 14 h l,Sh and, Causes of Action The branch sf defend I causes of action asserted as against the Spdnsor, the Non-SponSor defendants, Gruzen, and I , Gelfandl allegind frByd7iYri asserted as q a i n s t thg The allegations in the ,complaint with reqpect to these three causes of actisn fall into two main categories: ( I ) the defendqhtS Philure tb fulfill the promises appearing in the offering plan; and (2) the statement allegations supports a th the defendants did not intend t9 meet their contractual obliggtions does not cdnvert a m u s e of doe fob fraud (see CPLR 3016[b];-hyIan c . Cdn h action for breach of contra \ I I I [* 17] MasTec N.Am., Inc., 74 AD3d 1148 [2d Dept 20101; 767 Third Ave. LLC v Greble & Finger, LLP, 8 AD3d 75 [ I s t Dept 20041); Model's N. Y, Inc. v Noodle Kidoodle, 242 AD2d 248, 249 [lst Dept 19971. Further, optimistic or boastful statements a b w t performance or quality - puffery do not support an action for fraud (see Jacobs v Lewis, 261 AD2d 127 [Ist Dept 19991; FRAUD PARTICULARITY CASE). Accordingly, plaintiffs' thirteenth, fourteenth, and fifteenth causes of action are dismissed. Plaintiffs' 16"' Cause of Action The portion of defendants' motion seeking to dismiss the sixteenth cause of action "I asserted as against the Sponsor and' Non-Sponsor defendink for deceptive acts m d practices in violation of GBL !j349 is granted. The sixteenth cauqe of action is dismissed, "since it stem[s] from a privgte csntracfual dispute between ttie pa'r;tiqs without ramificatign fdr the public at large" (Merin v Precinct Devs. LLC, 74 AP3d 688, 68 t Dept 201 01 [internal citation$ omitted]; Thompson v ParkChester Apfs. Cq., 271 AD2d 31 1 [ l s t Dept 20001). The Court is unperwaded by plaintiffs' argumerlt that their clqim affectstthe public at large becauw the defendants construct other condominiums that! have post-construction problems. Furthkrrnore, ttorney General w claim is preempted by the Mgrtin A Plaintiffs' 17'h Cause of Action The portion Q f defendants' motion-seeking to dismiss the seventeenth cause I sf action asserted as against the Sponsor and Non-Sponsor defendants alleging a vidation of the Ipterstate Land $ales Full Disc/ I The sectign of ILSA eitgd by plaintiffs to the sale of land, including condominiums (Tencza v Tag Court Square, LCC, 803 P Supp 2d 279 [SDNY 201 I]; Cruz v Leview Fulton h b , d 329 [SI3 NY 20101). T Page 17 of 22 I I [* 18] , , \ allegations that appear as support for plaintiffs seventeenth cause of action are virtually I *I identical to the allegations appedring in their fourteenth and fifteenth causes of action, which, as previously stated, do not rise to the level of fraud or misrepresentation. Accordingly, plainitffs seventeenth cause of action is dismissed. Plaintiffs 18 h Cause of Action The portion of defendants motion seeking to dismiss the eighteenth cause of action for conversion of the condominium funds asserted as against the Board is granted. Conversion is the intentional and unauthorized exercise of Gontrol over personal property owned by another , , 1 v Harhysville Worcester Ins. Co., that interferes with the owner s right of possession (Ric . * 85 AD3d 651, 652 [ l s t Dept 201 I]; Colavito v New York Organ Donor Network, lnc., 8 see NY3d 43 [2006]). I In the case at bar, plaintiffs allege thd they disagree with the use of the condominium funds by the Board, contending that the funds should have been expended differently. The Court finds that plaintiffs failed to establish the requisite elements gf a conversion, and therefore the eighteenth cause of action is dismissed. d Plaint iffs ..3-0 h sg of AGCion Caw ,x li 1 I The branch of defendants motion seeking to dismiss the nineteenth Cause of action for [Tlhe Court of decisions of boards Qf managers of re judgment rule applied by courts to det ondominiufls .., is analogous to the business llenges to decisions made by cOrporate directors (Peltbn v 77 Pa 01). ~a bring lian action Levandusky v One Fifth ~ v eApt. Co . against the irldividual members of a . . . condominium board . . . plaintiffs [are] required to plead with specificity independerlt tortious acts by ehch indivi TI A order to Overcome . . . I I , [* 19] the business judgment rule" (Pelton, 38 AD3d at IO). The business judgment rule prohibits 1 ) judicial inquiry into actions taken in furtherance of corporate purposes by directors made in the exercise of honest judgment (see Sayeh v 66 Madison Ave. Apt. Corp., 73 AD3d 459 [I Dept st 201 01). In the instant matter, plaintiffs have failed to plead any specific independent acts of the individual Board members so as to sustain this cause of action. Accordingly, the plaintiffs' nineteenth cause of action is dismissed and the individual Board members are dismissed from the action, Jurisdiction over the Africa Israel Entities I / Lastly, with respect 'to the Court's jurisdict ntities, the Court grants that portion of defendants' motion seeking to dismiss the complaint for lack of personal arent company of a jurisdiction asserted as against said defendants. I I [ I Subsidiary that is subject to person jurisdiction over the parent" (Moreav v RPM, Inc., 20 ADqd 3 pt ZOQS]; Adriana Development Corp. N. V. v Gaspai-, 81 AD2d 235 [lst Dept sinFe the tprj an$ contract clhims qsserted as irgainst the Africa Israel entitie,$ havg &e,n diqmissed, there is no basis' for the 1 ~ rts exercisle jwrisdictic, t tortious act? cotnmitted without thb state &&ins injbry wifhin the state]). I Based on the foregoing, and the C g lconverted defendants' motions to summary judgment and in its discretion, searched ORDERED that deferrdants Giorgio Armani Cgrp , Arrnani Gq$a and Kevin Bergin's enae 003) is granted in itg I t is dismissed 3s ilinsf these defendants; And 'it is further, ORDERED that defendants Gruzen Samton, LLP and Michael Gelfand's mbtion (Motion Page 19 of 22 I [* 20] Sequence 006) is granted in its entirety and the complaint is dismissed as against these I J l defendants; and it is further, ORDERED that defendants 20 Pine Street LLC, 20 Pine Street Managers, LLC, Boymelgreen Family LLC, Jeshayahu Boymelgreen Q/&I Shaya Boymelgreen, AI Properties and Developments (USA) Corp., PinchaS Cohen, Richard Marin, Tamir Kazaz, Africa Israel Investments International 1997 Limited and Africa Israel Investments Limited'$ motion (Motion Sequence 007) is granted in its entirety and the cbmplaint is dismissed in its entirety as against said defendants, except the first and seventh causes of actiQn as against 20 Pine Street LLC; I and it IS " I i " i *lQ further, rl I + 1L ~ 1 + IN J ORDERED that defendant Trane lJ,S, Inc, (i/p/a Trane USA Inc,)'s motion (Motion Sequence 008) is granted in its entirety and the'c?&plqint.is diSmiSsed as against it; and it is I further, ORDERED that the Court, in searching thelrecord, grants summary judgment to non- moving defendants, and the complaint is hereby d isbed, in its entirety except the first and seventh causes of action as against 20 Fine Street is further ORDERED that the action shall begr the following caption: Page20of 22 , I [* 21] X -I----------__------______111___________------------------"--------"- THE 20 PINE STREET HOMEOWNERS ASSOCIATION and DANIEL JOSEPH MCCORMICK, CLAUD10 BARBER0 MONTAGNA, AMIR BABAK BEHNAM, KAZEM BEHNAM, 20 PINE, LLC, CARLA B. BUFFULIN, GUlLlANO INFANTOZZI, TRUST FBO HENNING F. BLOMBACK AND REVOCABLE TRUST FBO CHIANG CHING, HEATHER CURATOLO, ANDREW WISNEWSKI, LU C I A N0 D'A DAMI0 , G IOVA N NA D'A N13REA , FREDERICO DEVERA, PIU BANERJEE, ARNAB DEY, LOUIS DILORENZO, CHARISSE MELOTO, APURVA DIXIT, RUPALI DIXIT, LARRY J.B. EVANS, PHYLLIS A. EVANS, NANCY H FOGARTY, STACEY L HAEFELE, TAREK HALLABA, NAHED HALLABA, THOMAS HEINZ, ROSSANA SHOKRIAN, ELLIOT HEN-TQV, WILLIAM HUMAN, PJhuCY MYIVIAV, R KARICOD, MONICA A PAREKH, THOMAS A. KE TRUSTEE OF THE THOMAS A KELLE:FI LIVING TRUST, CHARLES RICHTER KING, BARBARA BERRIE, MAXIM A KOGAN, WILLIAM 4. KOULMENTAS, ELENI LMENTAS, SAMUEL DREW LANG, GRACIELA NER, ROGER LEFEVRE, MARC SVTIN, FLIU MACKAY, NATALIE MARKOFF, JOSEPH PLUMME$ MASSAND, SEEMA MASSAND, ERICA K. OLIVE(R4, ULSEN, KEVIN A.RELIFAV, CAROLYN RE NOLDS, MARIA CLAUDIA R IOEIRQ DE CA STANZL, ALVIN L. ROYSE,n N,ASSI@ SUO H L. SHOKRIAN, AS TFUSTEES OF THE SljQKRtAN TRUST DATED 3-17-1999, THE. RV$ LIMITbQ PARTNESHIP, NEIL S. SIMON JOY .@~DI&~.SO,LOMQI\F, JOHA$J PFRIENDER STYLANDER, GE WHITE, DONG DONG ZHOU, Plaintiffs, -agq1tlst- 20 PINE STREET LLC, Defendant. r7.rI It IS further, ORDERED that couhsel for Boymelgreeh Family LLCI skiall serve a copy of this Order * I [* 22] with Notice of Entry upon all parties and upon the County Clerk and the Clerk of the Trial Support Office, who are directed to enter judgment accordingly and to mark the court's records to reflect the change in the caption herein, within 30 days of entry; and it is further, ORDERED that all remaining parties are directed to appear for a Preliminary Conference at 2:30 p.m. on July 25, 2012 at New York County Supreme Court, 60 Centre Street, Room 341, Part 7 This constitutes the Decision and Order of the Court. Dated: L WOOTEN Check one: i n FINAL DISPOSITION Cheqk if appropriate: F' NEW YORK COUNJY CLERK'S QFFJCE I Page 22 of 22 I I t ! J.$.C. I

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