The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Third-Party Plaintiff Trump International Hotel & Tower Condominium ("Third-Party Plaintiff" or "Trump") brings this action seeking indemnification for any judgment against Trump in the underlying Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., lawsuit against Trump, and also alleging state law breach of contract, fraudulent misrepresentation, breach of fiduciary duty, breach of special duty, negligence/negligent misrepresentation, and civil conspiracy claims against the Third-Party Defendants in this case. Third-Party Defendants One Central Park West PT Associates Limited Partnership ("CPW" or "Sponsor"), Philip Johnson Ritchie & Fiore Architects ("PJRF"), and CK Architect, P.C. ("CK"), each move to dismiss the action.*fn1 For the reasons stated herein, Third-Party Defendants PJRF's and CK's Motions to Dismiss are GRANTED. Third-Party Defendant CPW's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.
The following facts are drawn from the Amended Third Party Complaint, and are assumed only for the purposes of this motion to be true. On February 24, 1993, CPW acquired the land and building located at 1 Central Park West, New York, New York, which later became the Trump International Hotel and Tower. (Am. Third Party Compl. ¶ 5.) CPW is the condominium sponsor of the units in the building, including those owned by Third-Party Plaintiff.*fn2 (Id. ¶ 1.) After purchase, CPW planned to renovate parts of the property, a project that required extensive construction. In the Condominium Offering Plan ("Offering Plan"), dated April 10, 1996, CPW promised to perform any work required to complete the construction in accordance with plans filed with the New York City Department of Buildings ("DOB").*fn3 (Id. ¶ 6.) To prepare plans necessary for the construction, CPW hired PJRF and CK, two architecture firms. (Id. ¶ 7.) Third-Party Plaintiff alleges that in the Offering Plan CK certified that the construction was done in compliance with the plans submitted to the DOB and that the Offering Plan did not omit any material facts, did not contain any untrue statements of material fact, fraud, deception, concealment, or falsehoods. (Id. ¶¶ 8-10.) Third-Party Plaintiff also alleges that CPW has remained involved in the building construction-related affairs of Third-Party Plaintiff since approximately 1997. (Id. ¶¶ 11-12.) In fact, in March 2003, CPW agreed in writing to assume some responsibility for ADA-related claims against Third-Party Plaintiff ("2003 Agreement"). (Id. ¶ 14.)
Plaintiff filed the underlying action in this case on September 22, 2004. Defendant/Third- Party Plaintiff filed the Third Party Complaint on May 18, 2005. It filed the Amended Third Party Complaint on December 28, 2005. The claims against Third-Party Defendant Cantor Seinuk Group were voluntarily dismissed, and each remaining Third-Party Defendant moved to dismiss the Amended Third Party Complaint in its entirety.
All Third-Party Defendants in this action bring Motions to Dismiss under Federal Rule of Civil Procedure 12(b)(6). "The function of a motion to dismiss 'is merely to assess the legal feasibility of the complaint . . . .'" Ryder Energy Dist. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)). Thus, the motion should not be granted unless it appears "clear" that Plaintiff can prove no set of facts in support of the claim which would entitle Plaintiff to relief consistent with the allegations in the Complaint. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); Weizmann Inst. of Sci. v. Neschis, 229 F. Supp. 2d 234, 252 (S.D.N.Y. 2002). Review of such a motion requires the Court to accept as true Third-Party Plaintiff's allegations in the Amended Third Party Complaint, and draw all inferences in favor of Third-Party Plaintiff. See Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993); Blimpie Int'l, Inc. v. Blimpie of the Keys, 371 F. Supp. 2d 469, 470-71 (S.D.N.Y. 2005). The Court is not concerned with weighing the evidence which would be presented at trial. See Chosun Int'l Inc. v. Chrisha Creations, Ltd., 413 F.3d 324, 327 (2d Cir. 2005).
"In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of N.Y.,199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. West Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). However, a court may consider public records, Tornheim v. Eason, 363 F. Supp. 2d 674, 676 (S.D.N.Y. 2005), as well as documents alleged or referenced in, but not attached to, the complaint. See Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 47-48 (2d Cir. 1991) (allowing defendant to produce a prospectus with its motion to dismiss which plaintiff failed to attach to the complaint); 2 Broadway LLC v. Credit Suisse First Boston Mortgage Capital LLC, No. 00 Civ. 5773, 2001 WL 410074, at *5 (S.D.N.Y. Apr. 23, 2001).
On May 24, 2006, the Honorable Richard J. Holwell decided the motions to dismiss in Disabled in Action of Metropolitan, New York v. Trump International Hotel & Tower, No. 01 Civ. 5518, brought by the same Third-Party Defendants here. That case involved a separate ADA lawsuit against Third-Party Plaintiff. In that case, as here, Trump filed a third-party complaint against CPW, PJRF, and CK. It asserted claims identical to those Trump asserts in the Amended Third Party Complaint here, namely indemnification for any sums that it would pay for alleged violations of the ADA, as well as breach of contract claims (for an alleged failure to abide by representations made in the 1996 Offering Plan and the alleged 2003 Agreement to indemnify Third-Party Plaintiff for any ADA related expenses), fraud, breach of fiduciary duty, breach of special duty, negligence/negligent misrepresentation, and civil conspiracy. In Disabled in Action, Judge Holwell dismissed all of Third-Party Plaintiff's claims except for the two contract claims against CPW. Third-Party Defendants argue that the doctrine of collateral estoppel, or issue preclusion, bars Third-Party Plaintiff from re-litigating the same issues in this Court. The Court agrees.*fn4
Initially, the Court must determine which law to apply. Though the Parties did not specifically address the issue, Third-Party Plaintiff relies on federal law in its papers, while Third-Party Defendants rely on New York law. In the Second Circuit, a federal court that is determining the preclusive effect of a prior federal question judgment must apply federal law. See Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 41-42 (2d Cir. 1986) ("A state court must apply federal law to determine the preclusive effect of a prior federal question judgment. It follows as a matter of course that a federal court should apply federal law in such circumstances." (internal citations omitted)). However, a "federal court sitting in diversity or adjudicating state law claims that are pendent to a federal claim must apply the choice of law rules of the forum state." Rogers v. Grimaldi, 875 F.2d 994, 1002 (2d Cir. 1989); see also Republic of Ecuador v. ChevronTexaco Corp., 376 F. Supp. 2d 334, 350 (S.D.N.Y. 2005) (applying federal choice of law rules to claims based on federal question jurisdiction and state choice of law rules to claims based on supplemental jurisdiction); Weizmann, 229 F. Supp. 2d at 249 (applying state choice of law rules to claims over which the court had supplemental jurisdiction). Thus, which law to apply depends on the jurisdictional basis for the claims in the Amended Third Party Complaint.
The claims asserted in the Amended Third Party Complaint all arise out of the common law of New York, but they are cognizable in this Court under the supplemental jurisdiction of the federal courts because they are related to the original ADA action, which raises a federal question. See 28 U.S.C. 1367(a) ("[T]he district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."). Thus, the choice of law rules of New York must be applied. See Rogers, 875 F.2d at 1002 (applying state choice of law rules where federal court is exercising supplemental jurisdiction).
"In New York . . . the first question to resolve in determining whether to undertake a choice of law analysis is whether there is an actual conflict of laws. It is only when it can be said that there is no actual conflict that New York will dispense with a choice of law analysis." Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386, 393 (2d Cir. 2001) (internal citations omitted). An actual conflict exists when (1) the substantive legal standards in the two areas of law differ, (2) the difference is relevant to the issue at hand, and (3) the issue could possibly have a significant effect at trial. See Fin. One Public Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 331 (2d Cir. 2005). Here, the Parties do not allege a conflict between New York collateral estoppel law and federal collateral estoppel law, nor is the Court aware of a difference that would meet the criteria set out in Finance One. See M.J. Woods, Inc. v. Conopco, Inc., 271 F. Supp. 2d 576, 580 (S.D.N.Y. 2003) ("The doctrine of collateral estoppel -- also known as issue preclusion -- operates almost identically under federal and New York State law . . . ."). When no conflict exists, New York courts apply New York law. See J. Aron & Co. v. Chown, 647 N.Y.S.2d 8, 8 (App. Div. 1996) (forgoing choice of law analysis and applying New York law where no actual conflict of law existed); see also ...