Gidumal v BPC Mezz LLC

[*1] Gidumal v BPC Mezz LLC 2013 NY Slip Op 50133(U) Decided on January 30, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 30, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Torres, Hunter, Jr., JJ
570279/12.

Steven Gidumal and Allison Keeley, Plaintiffs- Site 16/17 Development LLC,

against

BPC Mezz LLC, BPC Holdings LLC, and The Sunshine Group, LTD., Defendants-Respondents, -and- J. Christopher Daly, Sheldrake Site 16/17 Development Site LLC, Site 16/17 Investors LLC, Ismael Leyva Architects PC, Ismael Leyva and Desimone Consulting Engineers, Defendants.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered January 19, 2012, which granted in part defendants-respondents' motion to dismiss plaintiffs' first cause of action and granted in toto defendants-respondents' motion to dismiss plaintiffs' second, third and eleventh causes of action.

Per Curiam.

Order (Debra Rose Samuels, J.), entered January 19, 2012, affirmed, with $10 costs.

This action stems from plaintiffs' claimed dissatisfaction with a condominium apartment unit that they purchased in October 2008, after conducting two walk-through inspections of the premises. Plaintiffs' breach of contract cause of action, to the extent premised upon apartment conditions not listed in the "pre-closing punchlist" and "addendum to punchlist" contained in the pre-closing inspection statement, was properly dismissed since, pursuant to the clear terms of the governing purchase agreement and offering plan, defendant-respondent Site 16/17 Development, LLC, the condominium sponsor, had no post-closing obligation to repair any condition that was not "specifically designated" by the plaintiffs on the inspection statement.
Also properly dismissed were plaintiff's fraud and negligent misrepresentation causes of action against the sponsor and its selling agent, defendant The Sunshine Group, Ltd., since these claims "arise from the same provisions said to have been breached and seek the same damages, and thus merely duplicate the insufficient contract claims" (Board of Mgrs. of the Chelsea 19 [*2]Condominium v Chelsea 19 Assoc., 73 AD3d 581 [2010]). Moreover, these claims are barred by paragraph 21 of the purchase agreement, wherein plaintiffs expressly disclaimed reliance upon any oral representations of the sponsor or its selling agent (see Chappo & Co., Inc. v Ion Geophysical Corp., 83 AD3d 499 [2011]; Appel v Giddens, 89 AD3d 543 [2011]), and agreed to, and in fact did conduct their own investigation (see Board of Mgrs. of the Chelsea 19 Condominium v Chelsea 19 Assoc., 73 AD3d at 581-582).

Plaintiffs' fraud and negligent misrepresentation claims were also properly dismissed against defendants BPC Mezz, LLC, the sole member of the sponsor, and BPC Holdings, LLC, the managing member of BPC Mezz, LLC, because a member of a limited liability company "cannot be held liable for the company's obligations by virtue of his status as a member thereof" (Retropolis, Inc. v 14th St. Dev. LLC, 17 AD3d 209, 210 [2005]; see Limited Liability Company Law § 609). Nor may plaintiffs invoke the doctrine of piercing the corporate veil which, although applicable to limited liability companies (see Retropolis, Inc. v 14th St. Dev. LLC, 17 AD3d at 210), is a form of equitable relief which Civil Court does not have jurisdiction to entertain (see 19 W. 45th St. Realty Co. v Darom Elec. Corp., 233 AD2d 184 [1996]).

We also sustain the dismissal of plaintiffs' cause of action premised upon a claimed fraudulent conveyance because no facts were alleged in detail, as required by CPLR 3016(b) (see NTL Capital, LLC v. Right Track Recording, LLC, 73 AD3d 410, 412 [2010]; Wildman & Bernhardt Const., Inc. v BPM Associates, LP, 273 AD2d 38 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 30, 2013