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Board of Managers of 130 Fulton Street Condominium v. Beway Realty, LLC

Supreme Court, New York County

April 16, 2013

THE BOARD OF MANAGERS OF THE 130 FULTON STREET CONDOMINIUM, Plaintiff,
v.
BEWAY REALTY, LLC, KOEPPEL COMPANIES, LLC, ELLIOT VILKAS ARCHITECT, P.C., T/S ASSOCIATES MECHANICAL CONSULTANTS, A&E CONSULTANTS OF NEW YORK, LTD, DUBINSKY CONSULTING ENGINEER, P.C., F.J. SCIAME CONSTRUCTION CO., INC., SCIAME COMMUNITY BUILDERS LLC, SCIAME DEVELOPMENT INC., SCIAME INTERNATIONAL LLC, SCIAME GLOBAL LLC, SCIAME PARK AVENUE, LLC, SCIAME PARTNERS LLC and SCIAME ST. LUCIA LLC, Defendants. Index No. 101747/2012

Unpublished Opinion

DECISION & ORDER

Donna M. Mills, Judge.

Motions bearing the sequence numbers 001, 002 and 003 are hereby consolidated for decision. In this action alleging defective design and construction of the 130 Fulton Street Condominium (the Condominium), defendant T/S Associates Mechanical Consultants (T/S) moves, pursuant to CPLR 3211 (a) (1), (5) and (7), to dismiss the complaint and all cross claims as against it (Mot. Seq. 001). Defendants Elliot Vilkas Architect, P.C. (EVA) and Dubinsky Consulting Engineer, P.C. (DCE) (together EVA/DCE) move, pursuant to CPLR 3211 (a) (1) and (7), to dismiss the complaint as against it (Mot. Seq. 002). T/S amended its motion to dismiss the complaint and all cross claims as against it, and was assigned another motion sequence number (Mot. Seq. 003), mooting its original motion. Additionally, T/S later withdrew its request for dismissal of all cross claims as against it, and that prong of its motion shall be disregarded. Therefore, only EVA/DCE's motion to dismiss the complaint (Mot. Seq. 002) and

T/S's latter motion (Mot. Seq. 003) to dismiss the complaint will be considered herein.

Background

The Condominium was sponsored by Beway Realty LLC (the Sponsor). It operates a building in New York County holding 21 residential units and two commercial units, as well as certain "common elements, " such as, the underlying land and hallways. It is organized pursuant to an offering plan accepted for filing by the New York Attorney General on July 29, 2004. The first unit closed on June 20, 2006 (the Offering Plan). Plaintiff, the Board of Managers of the 130 Fulton Street Condominium, is the representative of the Condominium's unit owners. It assumed control of the Condominium from the Sponsor in December 2006. Defendant Koeppel Companies, LLC (Koeppel) is affiliated with the Sponsor and was the managing agent for the Condominium at the time of the offering. EVA, a professional architectural firm, prepared plans and specifications for the Condominium. T/S was the Condominium's mechanical consultant. Defendant A&E Consultants of New York, Ltd. (A&E) was the consultant for work done on the Condominium's exterior walls. DCE filed structural plans for the Condominium. Defendants F.J. Sciame Construction Co., Inc., Sciame Community Builders LLC, Sciame Development Inc., Sciame International LLC, Sciame Global LLC, Sciame Park Avenue, LLC, Sciame Partners LLC and Sciame St. Lucia LLC (Sciame Defendants) were the construction manager/general contractor for the Condominium.

The action commenced on September 6, 2012, asserting causes of action for: breach of contract against the Sponsor (first); breach of express warranty against the Sponsor (second); breach of implied warranty against the Sponsor (third); negligent construction and supervision against the Sponsor, Koeppel and Sciame Defendants (fourth); fraud, deceit and misrepresentation against the Sponsor and EVA (fifth); violation of the General Business Law (GBL) §§ 349 and 350 against the Sponsor (sixth); breach of contract against EVA, A&E, T/S, DCE and Sciame Defendants (seventh); negligence against EVA, A&E, T/S and DCE (eighth); breach of fiduciary duty against the Sponsor (ninth); and aiding and abetting breach of fiduciary duty against Koeppel, EVA, A&E, T/S, DCE and Sciame Defendants (tenth). Mot. Seq. 002, Exhibit B. On September 25, 2012, plaintiff filed an amended complaint adding causes of action for an accounting against the Sponsor (eleventh) and inequitable apportionment of common charges against the Sponsor (twelfth). Id., Exhibit C.

The amended complaint charges that the Condominium suffers from, among other deficiencies, defects in the windows, roof, elevators, plumbing, insulation and electrical systems. Plaintiff claims that the defendants "knew or should have known of the dangerous and defective conditions, as well as any design flaws in the Building as early as 2006." Amended Complaint, ¶ 63. Yet, they "signed off on filings with the DOB [Department of Buildings] that were either inaccurate, contained misrepresentations, and/or failed to disclose architectural and engineering defects in the Building that did not comply with codes, laws, regulations, and industry standards, all in an effort to enrich themselves and their companies herein." Id., ¶ 66. Plaintiff asks for punitive damages with most of the causes of action.

EVA/DCE's Motion to Dismiss the Amended Complaint - Mot. Seq. 002

Three of the 12 causes of action in the amended complaint are raised against EVA/DCE -breach of contract (seventh), negligence (eighth), and aiding and abetting breach of fiduciary duty (tenth). The cause of action for fraud, deceit and misrepresentation (fifth) is raised against

EVA alone. EVA/DCE's argument for dismissal of the amended complaint has several elements:

• The applicable statutes of limitations have run.[1]
• There is no private cause of action for violations of the Martin Act (GBL ...

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