Nassau County v New York State Urban Dev. Corp.

Nassau County v New York State Urban Dev. Corp. 2013 NY Slip Op 05559 Decided on August 7, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 7, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.
2011-08694
(Index No. 2750/04)

[*1]Nassau County, plaintiff,

v

New York State Urban Development Corporation, doing business as Empire State Development Corporation, et al., defendants third-party plaintiffs, Tishman Construction Corporation of New York, defendant second third- party plaintiff-appellant, et al., defendants; Roy Kay, Inc., et al., third-party defendants/second third-party defendants-respondents, et al., third-party defendant, et al., third-party defendant/second third-party defendant.




Goetz Fitzpatrick LLP, New York, N.Y. (Thomas S. Finegan and
Joel G. MacMull of counsel), for defendant second third-party
plaintiff-appellant.
Cullen and Dykman LLP, Garden City, N.Y. (Douglas J. Bohn
and Peter J. Mastaglio of counsel), for
third-party defendant/second third-
party defendant-respondent Roy Kay,
Inc.
Steven G. Rubin & Associates, P.C., Jericho, N.Y. (Susan B.
Rubin of counsel), for third-party
defendant/second third-party
defendant-respondent Anron Heating and Air
Conditioning, Inc.
McElroy Deutsch Mulvaney & Carpenter, LLP, New York,
N.Y. (Mark A. Rosen of counsel), for
third party defendant/second third-
party defendant-respondent Stonewall
Contracting Corp.


DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant second third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered May 31, 2011, as granted those branches of the respective motions of the third-party defendants/second third-party defendants Roy Kay, Inc., and Keyspan Corporation, Anron Heating and Air Conditioning, Inc., and Stonewall Contracting Corp. which were pursuant to CPLR 3211(a) to dismiss the second third-party complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly granted those branches of the respective motions of the third-party defendants/second third-party defendants Roy Kay, Inc., and Keyspan Corporation, Anron Heating and Air Conditioning, Inc., and Stonewall Contracting Corp. which were pursuant to CPLR [*2]3211(a) to dismiss the second third-party complaint insofar as asserted against each of them. The second third-party complaint, insofar as asserted against each of them, failed to state a cause of action sounding in either breach of contract (see Pile Found. Constr. Co. v Berger, Lehman Assoc., 253 AD2d 484, 486; see also Van-Tulco, Inc. v Long Is. Light. Co., 214 AD2d 725, 726) or contribution or indemnification (see Galvin Bros., Inc. v Town of Babylon, N.Y., 91 AD3d 715). The cause of action alleging negligent misrepresentation, insofar as asserted against each of them, was time-barred (see CPLR 3211[a][5]; Fandy Corp. v Lung-Fong Chen, 262 AD2d 352, 352-353) and failed to state a cause of action (see Ideal Steel Supply Corp. v Anza, 63 AD3d 884, 885).
DILLON, J.P., DICKERSON, MILLER and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court