Board of Mgrs. of the 432 Park Condominium v 56th & Park (NY) Owner, LLC

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Board of Mgrs. of the 432 Park Condominium v 56th & Park (NY) Owner, LLC 2023 NY Slip Op 33182(U) September 13, 2023 Supreme Court, New York County Docket Number: Index No. 655617/2021 Judge: Melissa A. Crane 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. INDEX NO. 655617/2021 NYSCEF DOC. NO. 644 RECEIVED NYSCEF: 09/13/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. MELISSA A. CRANE Justice ----------------------------------------------------------------- ----------------X BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE INDIVIDUAL UNIT OWNERS AND THE COMMERCIAL UNIT OWNERS, BOARD OF MANAGERS OF THE COMMERCIAL SECTION OF THE 432 PARK CONDOMINIUM, BOARD OF MANAGERS OF THE RESIDENTIAL SECTION OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE INDIVIDUAL UNIT OWNERS, Plaintiff, 60M INDEX NO. 655617/2021 MOTION DATE N/A MOTION SEQ. NO. 011 DECISION + ORDER ON MOTION - V - 56TH AND PARK (NY) OWNER, LLC,RYAN HARTER, HARRY MACKLOWE, Defendant. ------------------------------------------------------------------- --------------X 56TH AND PARK (NY) OWNER, LLC Third-Party Index No. 595204/2022 Plaintiff, -againstLEND LEASE (US) CONSTRUCTION LMB INC., SLCE ARCHITECTS LLP, WSP USA BUILDINGS, INC. F/K/A, WSP USA BUILDINGS, INC. F/K/A WSP CANTOR SEINUK STRUCTURAL ENGINEERS, CGI NORTHEAST INC, ROWAN DAVIES, IRWIN, INC.,, JENKINS AND HUNTINGTON, INC., VOA, INC. Defendant. -------------------------------------------------------------------------------- X HARRY MACKLOWE Second Third-Party Index No. 595923/2022 Plaintiff, -against- 432 PARK PROPERTIES INC. Defendant. -------------------------------------------------------------------------------- X 655617/2021 BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE INDIVIDUAL UNIT OWNERS AND THE COMMERCIAL UNIT OWNERS ET AL vs. 56TH AND PARK (NY) OWNER, LLC ET AL Motion No. 011 [* 1] 1 of 4 Page 1 of4 INDEX NO. 655617/2021 NYSCEF DOC. NO. 644 RECEIVED NYSCEF: 09/13/2023 LEND LEASE (US) CONSTRUCTION LMB INC. Third Third-Party Index No. 595956/2022 Plaintiff, -againstRAEL AUTOMATIC SPRINKLER COMPANY, INC., ASM MECHANICAL SYSTEMS, A.S.R. ELECTRICAL CONTRACTING, INC., CELTIC SHEETMETAL, INC., COMPONENT ASSEMBLY SYSTEMS, INC., IDA EXTERIOR SYSTEMS, LLC, L.I.F. INDUSTRIES, INC., MAYRICH CONSTRUCTION CORP., PARAMOUNT PLUMBING CO. OF NY, INC., ROGER & SONS CONCRETE, INC., NICHOLAS & GALLOWAY, INC., A&H CUSTOM MACHINE LTD., TAYLOR DEVICES, INC., METROPOLITAN WALTERS, LLC, SCHINDLER ELEVATOR CORPORATION, JOHN DOES Defendant. -------------------------------------------------------------------------------- X CELTIC SHEETMETAL, INC. Fourth Third-Party Index No. 595257/2023 Plaintiff, -againstINTERNATIONAL ASBESTOS REMOVAL, INC. F/K/A JOHN GRANDO, INC., PREMIER INSULATION SERVICES CORP., PRECISION TEST AND BALANCE OF NY CORP. Defendant. -------------------------------------------------------------------------------- X MAYRICH CONSTRUCTION CORP. Fifth Third-Party Index No. 595301/2023 Plaintiff, -againstSTARBRITE WATERPROOFING CO. INC., CIVETTACOUSINS JV, L.L.C. Defendant. -------------------------------------------------------------------------- ------X ROGER & SONS CONCRETE, INC. Sixth Third-Party Index No. 595305/2023 Plaintiff, -againstFERRARA BROS. BUILDING MATERIALS CORP., DOKA USA LTD., PERI FORMWORK SYSTEMS, INC., RETECH 655617/2021 BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE INDIVIDUAL UNIT OWNERS AND THE COMMERCIAL UNIT OWNERS ET AL vs. 56TH AND PARK (NY) OWNER, LLC ET AL Motion No. 011 [* 2] 2 of 4 Page 2 of 4 INDEX NO. 655617/2021 NYSCEF DOC. NO. 644 RECEIVED NYSCEF: 09/13/2023 SYSTEMS LLC, SAS STRESSTEEL, INC., THE CITY REBAR DETAILING, INC., HARRIS REBAR ATLANTIC, INC., STARBRITE WATERPROOFING CO., INC., DYWIDAGSYSTEMS INTERNATIONAL, USA, INC., FALCON STEEL COMPANY, INC., MEADOW BURKE, LLC, HILTI, INC. Defendant. -------------------------------------------------------------------------------- X The following e-filed documents, listed by NYSCEF document number (Motion 011) 397, 398,399,400, 401,402,403,404,420,446,447,448,455,484 were read on this motion to/for DISMISSAL Upon the foregoing documents, it is Third Third-Party Defendant, Schindler Elevator Corporation's ("Schindler") moves to dismiss that part of the second cause of action seeking common law indemnification and the fourth cause of action seeking contribution. Schindler has not moved to dismiss the first cause of action for breach of contract or that part of the second cause of action for contractual indemnification. Moreover, Lendlease has agreed to dismiss the third cause of action for negligence against Schindler without prejudice (see Lendlease Opp. Brief [EDOC 446] at fn. 3). Accordingly, the negligence claim is dismissed. As for common law indemnification, it is dismissed without prejudice. Given the way the case is currently postured, if, as Lendlease describes (see opp. Brief [EDOC 446 at pg 6]), a jury finds the elevator and escalator defects were caused solely by Schindler, then Lendlease would simply be off the hook. Lendlease has not articulated how, given its role in the project vis a vis Schindler, it could ever be held strictly or vicariously liable for Schindler' s activities. Therefore, Lendlease has failed to state a claim for common law indemnification. However, should the pleadings against Lendlease change, common law indemnification may become appropriate at that juncture. 655617/2021 BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE INDIVIDUAL UNIT OWNERS AND THE COMMERCIAL UNIT OWNERS ET AL vs. 56TH AND PARK (NY) OWNER, LLC ET AL Motion No. 011 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 655617/2021 NYSCEF DOC. NO. 644 RECEIVED NYSCEF: 09/13/2023 However, Lendlease has pied a proper claim for contribution. The Sponsor is seeking to hold Lendlease liable for faulty work that resulted in property damage. To the extent Schindler contributed to that property damage, it is on the hook for contribution, and the economic loss rule does not bar the cause of action (see Seymour v. Hovnanian, 211 A.D.3d 549, 557 [1 st Dep't 2022]; Sound Refrigeration & Air Conditioning, Inc. v. All City Testing & Balancing Corp., 84 A.D.3d 1349, 1350 [2d Dep't 2011]). Accordingly, it is 0 RD ERED THAT Schindler' s motion to dismiss that part of the second cause of action for common law indemnification and the third cause of action for negligence is granted and the motion is otherwise denied; and it is further ORDERED THAT the remaining claims are severed and shall continue; and it is further ORDERED THAT Schindler has 30 days from thee-filed date of this decision and order to answer the third third party complaint. 202309~655~7DCA21 9/13/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: MELISSA A. CRANE, J.S.C. ~ NON-FINAL DISPOSITION CASE DISPOSED GRANTED DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 655617/2021 BOARD OF MANAGERS OF THE 432 PARK CONDOMINIUM, ON BEHALF OF THE INDIVIDUAL UNIT OWNERS AND THE COMMERCIAL UNIT OWNERS ET AL vs. 56TH AND PARK (NY) OWNER, LLC ET AL Motion No. 011 [* 4] 4 of 4 OTHER REFERENCE Page4 of 4

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