Board of Mgrs. of the 130 Fulton v Bewy Realty LLC
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Board of Mgrs. of the 130 Fulton v Bewy Realty LLC 2013 NY Slip Op 31182(U) May 28, 2013 Sup Ct, New York County Docket Number: 101747/12 Judge: Donna M. Mills 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] SUI'IZEMII: COlJRT OF THE STATE OF NEW YORK- NEW YORK C'OIJN'IY PART PIZESENT : DONNA M. M I L I S 58 Jiistice INDEX No. I O 1747/12 MU CION DATE MO'IWNSLQ.No. 004 MC) I ION CAL NO. Thc following papers, numbered 1 to werc read 011 this motion for _ _ P A P l:R S NUMREKED Notice 01' Mo tioti/( )rdcr to Sliow Cause-At'tidavi ts- l:hhibits., ., Answering Af'ficlavils- 1 ixhi bits. . . . - . .. .. ~ .. . . " 3LtY - t - I LJpm tlic foregoing papers, it is ordered that this motion is: T>EC'IDI;I) IN ACCURIIANCE WITH THE ATTACHED ORDER. MAY 3 1 2813 COUNTY CLERK'S OFFICE NEVV Y O I i K i 1 a tecl : ) I Check one: __ FINAL DISPOSlTION [* 2] BEWAY REALTY, LLC, KOEPPEL COMPANIES, LLC, et al., DECIS IONlORDER Defendants. DONNA M. MILLS, J . . In this action alleging defective design and construction of the 130 Fulton street Condominium (the Condominium ), defendants F.J. Sciame Construction Co., Inc., Sciame Community Builders LLC, Sciame Construction, LLC, Sciame Development, Inc., Sciame Global, LLC, Sciame International, LLC, Sciame Park Avenue, LLC, Sciame Partners, LLC, and Sciame St. Lucia, LLC (collectively, Sciame Defendants ) move, pursuant to CPLR 3211 (a)(l),(a)(7), 3016(b) and 7501, to dismiss the complaint as against it. The Condominium was sponsored by Beway Realty LLC (the Sponsor ). It operates a building in New York County holding 21 residential units and two commercial units, as well as certain common elements, such as, the underlying land and hallways. It IS organized pursuant to an offering plan accepted for filing by the New York Attorney General on July 29, 2004. The first unit closed on June 20, 2006. Plaintiff, the Board of Managers of the 130 Fulton Street Condominium, is the representative of the Condominium s unit owners. It assumed control of the Condominium from the Sponsor in December 2006. The Sciame Defendants were the construction manager/general [* 3] contractor for the Condominium. A Construction Management Agreement was entered into by and between the Defendant Sponsor, as Owner, and Defendant F.J. Sciame Construction Co. Inc, as Construction Manager, with respect to the building. The amended complaint ( Complaint ) states three causes of action against the Sciame Defendants. The Fourth Cause of Actiorl for Negligent Construction and Supervision , the Seventh Cause of Action for Breach of Contract - Third Party Beneficiary and the Tenth Cause of Action for Aiding and Abetting Breach of Fiduciary Duty. The Complaint charges that the Condominium suffers from, among other deficiencies, defects in the windows, roof, elevators, plumbing, insulation and electrical systems. Plaintiff claims that the Sciame Defendants, and other defendants, knew or should have known of the dangerous and defective conditions, as well as any design flaws in the building as early as 2006. Yet, they signed off on filings with the Department of Buildings that were ether inaccurate, contained misrepresentations, and/or failed to disclose architectural and engineering defects in the building that did not comply with codes, laws, regulations, and industry standards, all in an effort to enrich themselves and their companies. Applicable Law & Discussion When evaluating a defendant s motion to dismiss, pursuant to CPLR 321 1 (a) (7), the test is not whether the plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege whatever can be reasonably implied from its statements, a cause of action can be sustained. Jones Lanq Wooton USAV LeBoeuf, Lamb, Greene 8, McRae, 243 AD2d 168, 176 ( I st Dept 1998), quoting Stendig, Inc. ,y Thorn Rock Realty.=, 2 163 [* 4] AD2d 46, 48 (Ist 1990). To this end, the court must accept all of the facts alleged in Dept the complaint as true, and determine whether they fit within any cognizable legal theory. Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Seiner, L.L.P., 96 NY2d 300, 303 (2001). However, where the allegation in the complaint consist only of bare legal conclusions, or of factual claims which are inherently incredible or are flatly contradicted by documentary evidence, the foregoing considerations do not apply, See e.g. Tectrade Intl. Ltd. v Ferti! izer Dev. and Inv., B . y , 258 AD2d 349 (I Dept 1999). ~ - _ _ I . The Fourth Cause of Action is against the Defendant Sponsor, Defendant Koeppel Companies, LLC and the Sciame Defendants for Negligent Construction and Supervision. It alleges that said Defendants had a duty to construct, supervise and manage the building, that said Defendants failed to comply with the applicable plans, specifications and drawings in the offering plan, the laws, regulations, engineering designs and local industry standards; that said Defendants were reckless, careless and negligent in constructing, supervising and management of the building, resulting in significant defects and deficiencies; that the Defendants conduct were intentional and involved malice, fraud, bad faith and reckless and willful, wanton, and conscious disregard or interference with the rights of the Board and Unit Owners. It is well settled that plaintiff cannot recover solely for economic loss arising out of negligent construction in the absence of a contractual relationship ( Residential Bd. of Manauers of ZeckendorF Towers, I90 A.D.2d at 636; see also Board of Manaqers -of ,Riverview at Colleqe Point Condominium 111,_182A.D.2d at 665-666). Thus, since plaintiff is only an incidental, not intended beneficiary of the contract between the Sponsor and the Sciarne Defendants, it may not recover damages for negligent construction ( see 3 [* 5] Residential Bd. of Manaqers of Zeckendorf Towe~t-, I90 A.D.2d at 636). -_ -. .I _ The Seventh Cause of Action is against Defendants Elliot Vilkas, A&E Consultants, TIS Associates, Dubinsky Consulting and the Sciame Defendants for Breach of ContractThird Party Beneficiary. With respect to the Sciame Defendants, it alleges that said Defendants entered into an agreement with the Defendant Sponsor whereby the Sciame Defendants agreed to and did, construct and inspect the Building; that the Sciame Defendants breached this agreement as the Building was not constructed in accordance with industry standards, proper architectural practices or in compliance with the applicable codes, rules and ordinances, and that the Sciame Defendants failed to inspect defects and deficiencies in the building. The Sciame Defendants contest the cause of action for breach of contract because, once again, Plaintiff is not an intended third-party beneficiary of Sciame s contract with the Sponsor. One who seeks to recover as a third-party beneficiary of a contract must establish that a valid and binding contract exists between other parties, that the contract was intended for his or her benefit, and that the benefit was direct rather than incidental (kdqe Mqt._,C~.n,suItinq, v Blank, 25 AD3d 364, 368 [Ist Dept 20061; Lake Placid-Cm Inc. Attached Lodges v Elizabethtown Bldrs., 131 AD2d 359, 162 [3d Dept 19871( construction contracts are not construed as conferring third-party beneficiary enforcement rights ). There are no fact-based allegations that the contract between a professional, such as the Sciame Defendants, and the Sponsor was intended to benefit plaintiff, and, therefore, it is in no position to profess breach of contract. As such, the Seventh Cause of Action for breach of contract shall be dismissed. The remaining cause of action asserted agaisnt the Sciame Defendants is aiding 4 [* 6] and abetting breach of fiduciary duty. "A claim for aiding and abetting a breach of fiduciary duty requires: (I)breach by a fiduciary of obligations to another, (2) that the defendant a knowingly induced or participated in the breach, and (3) that plaintiff suffered damages as a result of the breach" (Kaufman v Cohen, 307 AD2d 113, 125 [Ist 20031). The Dept Complaint does not allege any facts suggestive that the Sciame Defendants knowingly induced or participated in any breach of fiduciary duty by any of the other Defendants. Therefore, there is no bass for this cause of action agaisnt the Sciame Defendants for aiding and abetting breach of fiduciary duty, and it shall also be dismissed Accordingly, it is ORDERED that the Sciame defendants' motion to dismiss the complaint is granted, and the complaint is dismissed with costs and disbursements to said defendants as taxed by the Clerk of the Court upon submission of an appropriate bill of costs; and it is further 5
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