Board of Mgrs. of Fultonhaus Condominium v 119 Fulton St. Realty, LLC

Annotate this Case

Download PDF

Board of Mgrs. of Fultonhaus Condominium v 119 Fulton St. Realty, LLC 2014 NY Slip Op 30248(U) January 22, 2014 Supreme Court, New York County Docket Number: 651576/2012 Judge: Shirley Werner Kornreich Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 01/29/2014 1] INDEX NO. 651576/2012 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 01/29/2014 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: JUSTICE SHUiLEY \IVEHNER KORNHElCH c-u PART .......>_1_ Juatlt:e INDEX NO, MOTION DATE ¢V ¢ MOTION SEQ. NO. MOTION CAL. NO. - - - - - The following papers, numbered 1 to _ _ were read on th11 motion t o / f a r - - - - - PAPEJ!S NUMBEftED Answering Affldavlta - Exhlblta - - - - - - - - - - - - l 04-l:lJ 137-146 Replying A f f i d a v i t s - - - - - - - - - - - - - - - - l~o Notice of Motion/ Order to Show Cause - Affidavit ¢ - Exhlblta ... Cross-Motion: D Yes ~No Upon tha f oragolng pa pars, 1t la ordered that thl1 motion i' 1 \''," \ SHIRLEY Check one: D FINAL DISPOSITION Check if appropriate: 0 0 CT ' J.S.C. ~ NON-FINAL DISPOSITION DO NOT POST SUBMIT ORDER/ JUDG. ER 0 0 REFERENCE. SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 54 --------------------------------------------------------------------------)( BOARD OF MANAGERS OF FULTONHAUS CONDOMINIUM, Index No.: 651576/2012 DECISION & ORDER Plaintiff, -against119 FULTON STREET REALTY, LLC, DANIELL REAL ESTATE PROPERTIES, LLC, 119 FULTON STREET LLC, ISSAKHAR HACMUN, YOM TOV SAMIA, THE SHVO GROUP, LLC, TAUBE MANAGEMENT GROUP, HUSTVEDT CUTLER ARCHITECTS, GOLDSTEIN ASSOCIATES, PLLC, and I.V.L.N. CONSULTING ENGINEERS, Defendants. --------------------------------------------------------------------------){ 119 FULTON STREET REALTY, LLC, DANIELL REAL ESTATE PROPERTIES, LLC, 119 FULTON STREET LLC, ISSAKHAR HACMUN, and YOM TOV SAMIA, Third-Party Plaintiffs, -againstNTD CONSTRUCTION CORP. and GACE CONSULTING ENGINEERS, P.C. f/k/a GOLDSTEIN ASSOCIATES, PLLC, Third-Party Defendants. --------------------------------------------------------------------------)( HUSTVEDT CUTLER ARCHITECTS, Second Third-Party Plaintiff, -againstGACE CONSULTING ENGINEERS, P.C. f/k/a GOLDSTEIN ASSOCIATES, PLLC, and NTD CONSTRUCTION CORP., a/k/a EMERALD CONSTRUCTION GROUP a/k/a NEWTON CONSTRUCTION CORP., Second Third-Party Defendants. --------------------------------------------------------------------------)( NTD CONSTRUCTION CORP., Third Third-Party Plaintiff, [* 3] -againstCASTLE RESTORATION AND CONSTRUCTION, INC., DANICA GROUP, LLC, GGMG GROUP, JOLT ELECTRICAL CONTRACTING, INC., MILLENNIUM ELEVATOR, INC., ROBBINS CONSTRUCTION CORP., ROKAH BENY, ROSS & ASSOCIATES, LLC, SPRAY TECH CORP., STREAM LINE WINDOWS, STUCCO SPECIALISTS, INC., and O'GRADY CONSTRUCTION CORP., Third Third-Party Defendants. --------------------------------------------------------------------------:X::: SHIRLEY WERNER KORNREICH, J.: GACE Consulting Engineers, P.C. f/k/a Goldstein Associates, PLLC (GACE), a defendant in the third-party and second third-party actions, moves to dismiss the claims asserted against it in such actions pursuant to CPLR 3211. GACE's motion is granted for the reasons that follow. L Factual Background & Procedural History This case concerns a dispute over renovations performed on a building located at 119 Fulton Street in Manhattan (the Building). The court will not discuss the allegations in detail because such detail is irrelevant to this motion. As the court qiscussed in its order dated April 11, 2013 (the April Order), GACE, a structural engineer, performed work on the Building between 2004 and 2006, pursuant to a contract with defendant/second third-party plaintiff Hustvedt Cutler Architects (HCA). Plaintiff commenced this action on May 10, 2012, asserting claims against defendants related to the renovations. Most of the defendants asserted cross-claims against each other for indemnification and contribution. In the April Order, the court dismissed the claims against GACE as time barred because GACE has not performed work on the building since 2006. 2 [* 4] After the April Order was issued, three third-party actions were commenced, essentially bringing in all parties with any nexus to the subject renovations. GACE, however, is only a party to a single contract with HCA. The third-party claimants in this case, however, seek to assert myriad claims against GACE for indemnification and contribution, both equitably and under a theory that they are third-party beneficiaries to the HCA contract. 11 Discussion On a motion to dismiss, the court must accept as true the facts alleged in the complaint as well as all reasonable inferences that may be gleaned from those facts. Amaro v Gani Realty Corp., 60 AD3d 491 (1st Dept 2009); Skillgames, LLC v Brody, 1AD3d247, 250 (1st Dept 2003), citing McGill v Parker, 179 AD2d 98, 105 (1992); see also Cron v Harago Fabrics, 91 NY2d 362, 366 (1998). The court is not permitted to assess the merits of the complaint or any of its factual allegations, but may only determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action. Skillgames, id., citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977). Deficiencies in the complaint may be remedied by affidavits submitted by the plaintiff. Amaro, 60 NY3d at 491. "However, factual allegations that do not state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or clearly contradicted by documentary evidence are not entitled to such consideration." Skillgames, 1 AD3d at 250, citing Caniglia v Chicago Tribune-New York News Syndicate, 204 AD2d 233 (1st Dept 1994). Further, where the defendant seeks to dismiss the complaint based upon documentary evidence, the motion will succeed if "the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a 3 [* 5] matter oflaw." Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002) (citation omitted); Leon v Martinez, 84 NY2d 83, 88 (1994). The claims against GACE are defective on numerous grounds. For instance, GACE's claimants improperly seek to impose contractual liability onto it for consequential economic damages. See Rockefeller Univ. v Tishman Const. Corp. of NY., 232 AD2d 155 (1st Dept 1996), accord Bd. of Ed. ofHudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 28 ( 1987); see also Bleecker St. Health & Beauty Aids, Inc. v Granite State Ins. Co., 3 8 AD3d 231, 233 (1st Dept 2007) (contribution "is not available for economic loss resulting exclusively from breach of contract"). Regardless, the claims against GACE can be easily disposed of for the same reason plaintiffs claims against it were dismissed in the April Order the statute of limitations. Pursuant to CPLR 214(6), a cause of action sounding in malpractice is governed by a three-year statute oflimitations "regardless of whether the underlying theory is based in contract or tort." In re R.M Kliment & Frances Halsband, Architects, 3 NY3d 538, 541 (2004). Here, the claim against GACE "is essentially that [GACE] failed to perform services in a professional, non-negligent manner." See Bos/ow Family Ltd. Partnership v Kaplan & Kaplan, PLLC, 52 AD3d 417 (1st Dept 2008). Thus, all of the claims asserted against GACE, no matter how labeled, couched, or framed, are governed by a three-year statute of limitations that began to run when GACE completed the subject engineering services in 2006. See Frank v Mazs Group, LLC, 30 AD3d 369 (2d Dept 2006). Ergo, GACE cannot be held liable for damages arising from its work on the Building. 1 Accordingly, it is 1 The court need not reach the issue of which parties might be third-party beneficiaries of the HCA contract because, even if they are, they have "no greater rights or remedies than the direct parties to [a contract]." AMBAC Assurance Corp. v EMC Mortg. LLC, 39 Misc3d 1240(A), at 4 [* 6] ORDERED that the motion to dismiss by GACE Consulting Engineers, P.C. f/k/a Goldstein Associates, PLLC (GACE) is granted, and the Clerk is directed to enter judgment dismissing the Third-Party Complaint and the Second Third-Party Complaint against GACE with prejudice; and it is further ORDERED that the remaining claims in the main action and the three third-party actions are severed and shall continue against the remaining defendants. Dated: January 22, 2014 ENTER: EICH -9.S.C. *4-6 (Sup Ct, NY County 2013) (Ramos, J.); BAJ/ Banking Corp. v UPG, Inc., 985 F2d 685, 697 (2d Cir 1993), citing Dunning v Leavitt, 85 NY 30, 35 (1881) ("it would be contrary to justice or good sense to hold that [a third-party beneficiary] should acquire a better right against the promisor than the promisee himself had"). HCA's claims are time barred, as are the claims of all purported third-party beneficiaries. 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.