Board of Mgrs. of the A Bldg. Condominium v 13th & 14th St. Realty, LLC

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Board of Mgrs. of the A Bldg. Condominium v 13th & 14th St. Realty, LLC 2014 NY Slip Op 33353(U) December 18, 2014 Supreme Court, New York County Docket Number: 100061/11 Judge: Barbara Jaffe 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 12 ---------------------------------------------------------------------x THE BOARD OF MANAGERS OF THE A BUILDING CONDOMINIUM, Plaintiff, Index No. 100061/11 Motion seq. no. 22 DECISION & ORDER -against- 13th & 14th STREET REAL TY, LLC, et al., Defendants. --------------------------------------------------------------------x BARBARA JAFFE, JSC: For Hudson Meridian: For Langan/GZA: James Freire, Esq. Miller & Assocs. One Battery Park Plaza, 28th fl. New York, NY 10004 212-867-9255 Scott Winikow, Esq. Donovan Hatem LLP 112 W. 34th St., 18th FL New York, NY 10120 646-346-1257 By notice of motion, third third-party defendants Langan Engineering and Environmental Services, Inc. and GZA GeoEnvironrnental, Inc., move pursuant to CPLR 321 l(a)(l) and (7) and/or CPLR 3212 for an order dismissing the third-party complaint of third third-party plaintiff Hudson Meridian Construction Group, LLC, s/h/a Hudson Meridian Construction Group, and all cross claims against it. Hudson Meridian opposes. This action arises from the allegedly defective construction of a condominium; Hudson Meridian was the construction manager for the condominium. Langan was retained by defendant/third-party plaintiff Magnum Management, LLC (Magnum), an entity related to the sponsor and involved in the construction, to provide geotechnical engineering services for the construction, including conducting a subsurface investigation and preparing a report with recommendations concerning and including waterproofing. Langan's agreement was solely with [* 2] Magnum and contained the limitation that the report was produced for Magnum for the construction. There was no agreement between Langan and Hudson Meridian. (NYSCEF 956). GZA contracted with Magnum in 2006 to monitor the movement of two structures adjacent to the condominium; it performed nor did it agree to perform any design or construction services related to the condominium itself. It had no agreement with any entity other than Magnum. (NYSCEF 959). By decision and order dated August 30, 2013, as pertinent here, I granted partial summary judgment in favor of Hudson Meridian and against plaintiffs, finding that plaintiffs' claims for common law negligence were insufficient as they sought damages solely for economic loss arising out of the alleged negligent construction, notwithstanding their claims that Hudson Meridian's negligence created an unreasonable hazard to their lives and safety. (NYSCEF 496). Hudson Meridian opposes dismissal only of its negligence and contribution claims. (NYSCEF 1082). I. CONTENTIONS Langan and GZA argue that Hudson Meridian's contribution claim fails as plaintiffs seek to recover solely for economic loss, as I found in the August 2013 order, and that the negligence claim is meritless as they owed no duty to Hudson Meridian. (NYSCEF 967). Relying on plaintiffs bill of particulars, Hudson Meridian contends that plaintiffs seek, in addition to property damage, damages for personal injuries arising from the condominium's defective construction, along with other documents addressing the mold that allegedly developed in the condominium. It denies that its tort claims are duplicative, as they are pleaded in the alternative, and asserts that Langan and/or GZA may be held liable in tort regardless of the lack 2 [* 3] of any privity between them. (NYSCEF 1086). In reply, Langan and GZA deny that plaintiffs assert claims for personal injuries, observing that no such claims appear in plaintiffs' complaint or bill of particulars, that my prior decision granting dismissal to Hudson Meridian is the law of the case and binding on its claims against them, and that Hudson Meridian's attempt to recast its breach of contract claims as tort claims must be rejected as it does not assert a duty owed by them other than its contractual duty to Magnum. (NYSCEF 1149). II. ANALYSIS As I already found on Hudson Meridian's own motion, plaintiffs' injuries relate solely to economic loss, and thus there is no basis on which Langan and/or GZA may be held liable for common law contribution. (Bd. of Educ. of Hudson City School Dist. v Sargent, et al., 71 NY2d 21 [ 1987] [no right to contribution where damages claimed are economic loss resulting from breachofcontract];Kleinbergv516 W 191h LLC, 121 AD3d459 [I8tDept2014] [contribution unavailable where underlying contractual claims seek purely economic damages]; Bd. of Mgrs. of 195 Hudson St. Condominium v 195 Hudson St. Assocs., LLC, 37 AD3d 312 [1st Dept 2007] [as damages sought by plaintiffs merely for economic loss, contribution unavailable]). Moreover, claims based on the negligent performance of a contract are not cognizable (Wildenstein v 5H & Co., Inc., 97 AD3d 488 [1st Dept 2012] [breach of contract not considered tort unless legal duty independent of contract has been violated]; Bd. of Mgrs. of Chelsea 19 Condominium v Chelsea 19 Assoc., 73 AD3d 581 [!81 Dept 2010] [claim for negligent performance of contract not cognizable]; Saint Patrick's Home for the Aged and Infirm v Laticrete Intl., Inc., 267 AD2d 166 [1st Dept 1999] [alleging that breach of contract duty arose 3 [* 4] from lack of due care will not transform breach of contract into tort]), and, in any event, are duplicative of a breach of contract claim (Bd. ofMgrs. ofSoho N 267 W 124'h St. Condominium v NW 124 LLC, 116 AD3d 506 [1st Dept 2014] [allegations of negligence based on defects in construction of condominium sound in breach of contract, not tort]; Hamlet on Olde Oyster Bay Home Owners Assn., Inc. v Holiday Org., Inc., 65 AD3d 1284 [2d Dept 2009], lv denied 15 NY3d 742 [2010] [negligence claim based on construction defects dismissed as duplicative of breach of contract claim]). While a contractor may be held liable in tort to a non-contracting party in certain limited circumstances, including if, in failing to exercise reasonable care in the performance of its contractual duties, it launches a force or instrument of harm by creating or exacerbating a dangerous condition (Espinal v Melville Snow Contrs., Inc., 98 NY2d, 136 [2002]), Hudson Meridian cites no authority for the proposition that Langan's alleged failure to investigate properly and issue recommendations related to the construction and GZA's alleged failure to monitor properly certain limited aspects of construction is equivalent to creating or exacerbating a hazardous condition (see eg Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253 [2007] [failure to properly inspect vehicle did not create or exacerbate dangerous condition as no reason to believe that inspection made vehicle less safe than beforehand]; All Am. Moving and Storage, Inc. v Andrews, 96 AD3d 674 [1st Dept 2012] [failure by contractor to inspect sprinklers did not launch force or instrument of harm]; Altinma v E. 72nd Garage Corp., 54 AD3d 978 [2d Dept 2008] [contractor's alleged negligent failure to warn defendant regarding safety inspection requirements insufficient to impose duty of care upon party not in privity of contract with injured party]). Johnson v City ofNew York is inapposite as there, the movant raised a triable issue as to 4 [* 5] whether the third party contractor negligently failed to install circuit interrupters and thereby created the allegedly hazardous condition that caused the plaintiff's injuries. (102 AD3d 746 [2d Dept 2013]). III. CONCLUSION Accordingly, it is hereby ORDERED, that the motion of third third-party defendants Langan Engineering and Environmental Services, Inc. and GZA GeoEnvironmental, Inc. for an order dismissing the thirdparty complaint of third third-party plaintiff Hudson Meridian Construction Group, LLC, s/h/a Hudson Meridian Construction Group and all cross claims against them is granted, and the third third-party complaint is dismissed with costs and disbursements to third third-party defendants Langan Engineering and Environmental Services, Inc. and GZA GeoEnvironmental, Inc. as taxed by the Clerk upon the submission of an appropriate bill of costs, and the Clerk is directed to enter judgment accordingly; and it is further ORDERED, that the remainder of this action shall continue. ENTER: DATED: December 18, 2014 New York, New York 5

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