Board of Mgrs. of Soma Condominium v Yanko

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Board of Mgrs. of Soma Condominium v Yanko 2013 NY Slip Op 32758(U) October 23, 2013 Sup Ct, New York County Docket Number: 150973/13 Judge: Melvin L. Schweitzer 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 10/29/2013 1] INDEX NO. 150973/2013 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/29/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART '-i~ Justice MOTION DATE _ _ __ -v- MOTION SEQ. NO. CIG ( The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, It Is ordered that this motion ie ~ I No{s)._ _ _ __ I No(s). - - - - - 1No{s). - - - - - ~ ~r. 'fV\a.<.J.n4.Z> -t- ~~A~ D> d.c . . Q n ¢ ¢ ·~ ~~~ca,,~ ~~~~a~ ti: ~ 61!-A~. w 0 j::: ::::> "' .:JRo ~ i<i ~~ vv~ '~ "") 0 .... 0 w 0:: 0:: w LL w 0:: >- ;..:, _J !!!. z _J ::::> 0 CIJ LL ~ t; w 0:: 3; (!) wz 0:: - "' 0 - 3: w _J "' 0 <( 0 _J LL /2 -11 t.. + Io f\-1\1\ c. +-- ~O - J: z w 0 .... j::: 0:: 0 0 ::::E u.. 1. CHECK ONE: ...... ¢............................ ¢.. ¢ ¢................ ¢. ¢. ¢........ 0 CRA~A NTDEIDSPOSEDD DENIED 2. CHECK AS APPROPRIATE: ...........................MOTION IS: ~NTEC 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 ITION 0 OTHER GRANTED IN PART 0 SETILE ORDER ODO NOT POST NON-FINAL DISP SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIV. PART 45 ------------------------------------------------------------------------x BOARD OF MANAGERS OF SOMA CONDOMINIUM ON BEHALF OF THE UNIT OWNERS, Plaintiff, -againstMICHAEL YANKO & ERAN CONFORTY, SOMA HUDSON BLUE LLC, SOMA HUDSON DEVELOPMENT LLC, CHELSEA CONDOS LLC, 22N° STREET DEVELOPMENT LLC, HORIZON GLOBAL LLC, BY DESIGN LLC, NEW YORK ADVISORY SERVICE, INC., MICHAEL J. MACALUSO AS SOCIATES, GOLDSTEIN ASSOCIATES, & THE CORCORAN GROUP, Index No. 150973/13 DECISION AND ORDER Motion Sequence No. 001 Defendants. ------------------------------------------------------------------------x MELVIN L. SCHWEITZER, J.: This lawsuit is brought on behalf of the unit owners of a newly-constructed condominium building located at 116 West 22nd Street in Manhattan which was allegedly designed and constructed with numerous defects. Plaintiff has sued the owner of the building, the sponsor, and various other parties who were involved in the design and construction of the building, including the architectural firm of Michael J. Macaluso & Associates (MJM). This defendant now moves, pursuant to CPLR 3211 (a) (1), (5), and (7) to dismiss the plaintiffs complaint and all cross claims asserted against MJM. The motion is unopposed. In its complaint, plaintiff asserts eleven causes of action, two of which are asserted against MJM, and one of which is asserted against all defendants. Plaintiffs seventh cause of action alleges that MJM made false representations, and omitted material facts, in the Offering [* 3] Plan, more particularly that "[t]he Architect Certification contained false statements concerning the quality of design of the Building" (Cmplt., ~ 92). Plaintiff claims that the unit owners relied on these misrepresentations and omissions in purchasing their condominium units. Plaintiffs eighth cause of action alleges that MJM negligently performed its architectural services on the construction project. The tenth cause of action alleges that all of the defendants violated Section 349 of the General Business Law (GBL) by making intentionally false and fraudulent misrepresentations in the Offering Plan "concerning the materials, design, construction and condition" of the building and units, and that the Offering Plan was used a "marketing tool" to sell condominium units to consumers at large (Cmplt., ~ii 111-119). By plaintiffs owns allegations, the Offering Plan was accepted for filing by the New York State Attorney General's Office on November 16, 2004 (Cmplt., ii 34). According to the documentary evidence submitted on this motion, MJM was retained in May of 2005 by defendant Horizon Global LLC (Horizon) to take over for the original architects on the project, non-parties Hb2 Architecture and Design, Kim Vauss, R.A., and Haym Gross (see Macaluso Aff., Ex. A). The Offering Plan identifies "Haym Salomon Gross" as "[t]he architect who prepared the plans and the specifications for the construction of the condominium" (Mellon Affirm., Ex. Bat 96), and it was Haym Salomon Gross who signed the architect's certification filed pursuant to GBL {\rticle 23-A on July 7, 2004 (id. at 235, 237 1). Pursuant to an October 24, 2005 additional services agreement, Horizon retained MJM to provide additional services on the project (see Macaluso Aff., ii 4 & Ex. B). MJM contends that the last filing that it made with the Department 1 Page 2 of the certification, which is page 236 of the Offering Plan, is missing from the copy submitted to the court as exhibit 8 to the moving affirmation of Raymond T. Mellon. 2 [* 4] of Buildings (DOB) was submitted on July 20, 2006 and included amended architectural plans (id., ~ 13 & Ex. D), and that MJM' s final invoice for its services was sent to Horizon in November 2006 (id., ~ 15 & Ex. C). The DOB i~sued a temporary certificate of occupancy for the condominium in January 2007 (id., Ex. E). This action was commenced on January 31, 2013. To date, only two defendants have filed answers to the complaint, defendant GACE Consulting Engineers, P .C., s/h/a Goldstein Associates [Doc. No. 2] and NRT New York, LLC d/b/a Corcoran Group Real Estate s/h/a The Corcoran Group [Doc. No. ·21]. Both answers assert boilerplate cross claim against all defendants sounding in contribution and indemnification. The complaint's eighth cause of action alleging negligence by MJM is dismissed as timebarred. In New York, an action to recover damages for architectural malpractice is governed by CPLR 214 (6)'s three-year statute of limitations (Matter of R.M Kliment & Frances Hals band, Architects [McKinsey & Co., Inc.}, 3 NY3d 538, 542-543 [2004]), and "must be instituted within three years of the completion of the work involved" (Reyes-Dawson v Goddu, 74 AD3d 417, 418 [1st Dept 2010]). MJM completed its work no later than January 2007, and thus any negligence. . based claims are time-barred. The seventh and tenth causes of action are also dismissed, since they are predicated on alleged misrepresentations and false statements contained in the Offering Plan, a document with which MJM did not have any involvement. To the extent plaintiff alleges that the MJM omitted material facts in the Offering Plan, or any subsequent amendments thereto, plaintiff Jacks standing to pursue such a claim (see Assured Guar. (UK) Ltd. v JP. Morgan Inv. Mgt. Inc., 18 NY3d 341, 353 [2011]; Kerusa Co. LLC v WJOZ/515 Real Estate Ltd. Partnership, 12 NY3d 3 [* 5] 236, 239 [2009); Bhandari v Ismael Leyva Architects, P.C., 84 AD3d 607, 607-608 [1st Dept 2011 ]). For the foregoing reasons, it is hereby ORDERED that the motion of defendant Michael J. Macaluso & Associates to dismiss the complaint and all cross claims asserted against this defendant is granted, without opposition, and the complaint and all cross claims are dismissed against this defendant, with costs and disbursements as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further ORDERED that the action is severed and continued against the remaining defendants. Dated: OctoberJ'S, 2013 ENTER: MELVIN L ¢ SCH'" 1EITZER wv 4

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