Board of Mgrs. of the 15 Union Sq. W. Condominium v BCRE 15 Union Sq. W. LLC

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Board of Mgrs. of the 15 Union Sq. W. Condominium v BCRE 15 Union Sq. W. LLC 2021 NY Slip Op 30253(U) January 27, 2021 Supreme Court, New York County Docket Number: 162500/2015 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 162500/2015 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES lAS MOTION 59EFM Justice ----------------------------------------------------------------------X 162500/2015 INDEX NO. BOARD OF MANAGERS OF THE 15 UNION SQUARE WEST CONDOMINIUM, 12/06/2019 MOTION DATE 001 MOTION SEQ. NO. Plaintiff, - vBCRE 15 UNION SQUARE WEST LLC, MOSHE AZOGUI, ISSAC HERA, BCRE 15 USW HOLDINGS LLC, BCRE 15 USW SECOND LLC, BCRE 15 USW CORP, BCRE SERVICES LLC, BCS USA LLC, and BRACK CAPITAL REAL ESTATE USA CORP, DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------------------------ X' The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29,30,31,32,33,34,35,36 DISMISS were read on this motion to/for ORDER Upon the foregoing ORDERED extent that documents, the motion that the second, against defendant otherwise denied; that the complaint with notice ORDERED to dismiss third and fourth complaint ORDERED it is is granted causes BCRE are dismissed, only to the of action of the and such motion is and it is further defendants within of entry; that are directed to serve answer (s) to 30 days after service of a copy of this order and it is further counsel 59nyef@nycourts. gov and are file with to directed NYSCEF a proposed 162500/2015 BOARD OF MANAGERS OF THE 15 VS. BCRE 15 UNION SQUARE WEST LLC Motion No. 001 1 of 4 submit' to preliminar Page 1 of4 [* 2] INDEX NO. 162500/2015 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2021 conference order order on March or a proposed counter preliminary conference 2021. 12, DECISION In this action "Board") brought by the Board of Managers of the condominium "Building") West LLC against at 15 Union Square West the developer-sponsor ("BCRE") and other defendants, the complaint actionable against claims t6 dismiss that it fails to state and that in any event those claims For the rea~ons barred. (the BCRE 15 Union Square BCRE moves it on the grounds (the are time- that follow the court shall deny the motion. BCRE argues action, that plaintiff's for breach respectively, of contract are time-barred first and second and unjust because causes of enrichment this action was commenced more than six years after the sale of the first condominium (see CPLR 213[2]). opposition However, to the motion were brought the court agrees with plaintiff's that the first two causes wi thin the statute of li-mitations the Court has held that amendments reaffirm the representations plan extend action 162500/2015 are timely. of action period to an offering because plan that ~nd terms of the original the time within which the statute begin to run and therefore plaintiff's offeiing of limitations first two causes See 61 W. 62 Owners Corp. v Harkness BOARD OF MANAGERS unit OF THE 15 vs. BCRE 15 UNION SQUARE WEST LLC Motion No. 001 2 of 4 of Apt. Page 2 of 4 [* 3] INDEX NO. 162500/2015 NYSCEF DOC. NO. 40 Owners amended RECEIVED NYSCEF: 01/27/2021 Corp., 222 AD2d 358, 360 four times within commenced Dept 1995) (lst the six years before and each time the Sponsor plaintiff's breach of warranty (where Plan was the action reaffirmed was the Plan, claim was timely as a matter law) . Similar action for fraud, which the court based upon the foregoing principles apply to plaintiff's fourth of cause of finds is timely. However, dismiss the court shall grant the defendant's the second plaintiff for unjust fails to raise any obligations those promised action cause of action in the Offering is duplicative See EBC I, Inc. v Goldman, separate Sachs breach fails to state a cause of action enrichment as the existence for events generally arising from the cause of claim. for unjust precludes recovery governing the in quasi contract out of the same subject matter) . for negligence failed to plead a viable of the injury as and apart of contract of a valid contract The court shall also grant the motion cause of action to Co., 5 NY3d 11, 23 ,(2005) & (plaintiff subject matter enrichment Plan and therefore of plaintiff's motion on the grounds tort action. and resulting to dismiss the third that plaintiff Here, although has the nature harm sound in tort, the manner in \. which the alleged injury occurred sounds in contract there would be no legal duty owed to plaintiff existence of the contractual 162500/2015 BOARD OF MANAGERS Motion No. 001 obligations but for the specified OF THE 15 vs. BCRE 15 UNION SQUARE WEST LLC 3 of 4 because in the Page 3 of 4 [* 4] INDEX NO. 162500/2015 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2021 Offering 1660 Plan. See Gallup v SummersetHomes, 1658, (4th Dept 2011). The court further action finds that plaintiff's for fraud is subject plaintiff's argument, pled the complaint to dismissal plaintiff plaintiff's from those governed Alexander breach fails to allege the promises Dept 2016) ("the complaint of contract purchase claim. fails to allege and See v E. 49th St. Dev. St., LLC, 136 AD3d Sep 11, 2018) separate from of Beacon 680, 684 (2d facts that would give or to the unit owners, of the duty impo~ed by the offering plan and agreements"). it<DE ftA A. )-Jc.. JAMES, 1/27/2021 DATE CASE DISPOSED CHECK ONE: GRANTED SETTLE ORDER APPLICATION: CHECK IF APPROPRIATE: 162500/2015 Plan and Plan); Bd. of Managers rise to a duty owed to the plaintiff, independent that as separate any misrepresentations v 85 Adams to Plan and therefore (Sup Ct, NY County, under the Offering Tower Condominium of obligations by its Bd. of Managers II, LLC, 60 Misc 3d 1232(A) (plaintiff contrary in the Offering by the Offering by plaintiff's Condominium, because cause of claim of fraud is based wholly does not allege a breach encompassed fourth the court agrees with defendant upon the alleged misrepresentations apart LLC, 82 AD3d ~ INCLUDES BOARD OF MANAGERS NON.FINAL D X DENIED DISPOSITION IN PART SUBMIT ORDER . TRANSFER/REASSIGN GRANTED FIDUCIARY APPOINTMENT ~ OF THE 15 VS. BCRE 15 UNION SQUARE WEST LLC Motion No. 001 4 of 4 ~o QA J.S.C. 0 D OTHER REFERENCE Page 4 of4

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