[970 N.Y.S.2d 683] Jay R. Fialkoff, Esq., Moses & Singer, LLP, New York, for Plaintiff.
Pauline F. Tutelo, Esq., Marshall, Dennehey, et al., Roseland, NJ, for CPS 112.
Gregory J. Spaun, Esq., Welby, Brady & Greenblatt, LLP, White Plains, for IWC.
Jessica G. Price, Esq., Hannum, Feretic, et al., New York, for JT Magen.
Carl M. Perri, Esq., Claussen Miller, PC, New York, for Roslyn.
Austin Graff, Esq., The Scher Law Firm, LLP, Carle Place, for DKS.
BARBARA JAFFE, J.
By notice of motion dated May 2, 2012, third-party defendant Industrial Window Corp. (IWC) moves pursuant to CPLR 3211(a)(1) and (7) for an order dismissing plaintiff's first and second causes of action and so much of 112 Central Park South, LLC's (112 CPS) complaint and cross-claims by which it seeks to hold it vicariously liable for the claims asserted by plaintiff in its first and second causes of action, the third-party complaint against it, and all cross-claims against it. 112 CPS and JT Magen & Co., Inc. (JT Magen) oppose.
By notice of motion dated June 6, 2012, 112 CPS moves pursuant to CPLR 3211(1) and (7) and 3212(2) for an order dismissing plaintiff's first and second causes of action. Plaintiff opposes.
By notice of motion dated October 27, 2011, third-party defendant Roslyn Engineering Associates, PC (Roslyn) moves pursuant to CPLR 3212 for an order dismissing third-party plaintiff 112 CPS's claims against it. 112 CPS opposes.
By notice of motion dated January 18, 2012, third-party defendant DKS Contractors, Inc. (DKS) moves pursuant to CPLR 3211(a)(5) and (7) for an order dismissing 112 CPS's claims against it. 112 CPS opposes.
Plaintiff is a cooperative apartment corporation that owns a 29-story apartment building at 110 Central Park South in Manhattan. Defendant 112 CPS was responsible [970 N.Y.S.2d 684] for designing, contracting, and supervising the gut renovation of the premises and the addition of three stories. JT Magen was the general contractor for the renovation, and hired subcontractors, including IWC. The building was constructed pursuant to an offering plan, and related documents, which outline how the building was to be renovated. After the renovation was complete, tenants discovered latent defects in the property which they believe are related to deviations from the offering plan.
Plaintiff commenced this action by filing and serving a summons with notice and thereafter with a complaint on February 7, 2011. As against 112 CPS, plaintiff alleges that it breached several provisions of the offering plan, breached an " implied housing warranty under the common law that the construction of the building be performed in a skillful and workman like manner, was negligent in preforming its duties to supervise and ensure proper construction, and made misrepresentations about its compliance with the Offering agreement." On February 23, 2011, 112 CPS filed its answer, in which it also asserted cross-claims against JT Magen and Epic Mechanical Contractors, LLC (Epic).
On May 9, 2011, 112 CPS commenced a third-party action against, as pertinent here, CKP, Roslyn, IWC, DKS, Innovative, JT Magen, and Epic. In its first and second causes of action, 112 CPS alleges, respectively, common law indemnification and contribution. The third, fourth, and fifth causes of action, brought against CKP in particular, set forth causes of action for breach of the express warranty that the work would be free of defect, breach of an implied warranty to deliver a building it for its intended use, and breach of a duty of reasonable care.
On June 27, 2011, IWC served all parties with its answer to the third-party action. On July 27, 2011, third-party defendant IWC served a fourth-party complaint against DeMayo Construction, Inc. (DeMayo). On August 11, 2011, Roslyn filed an answer to the third-party complaint, and on September 12, 2011, 112 CPS served an amended third-party complaint on all parties, as to which Roslyn and Innovative filed answers on September 23, 2011. On September 19, 2011, DeMayo served its answer to the fourth-party complaint. On September 28, 2011, Roslyn served all parties with its answer to the cross-claims of third-party. On October 11, 2011, IWC served its answer to the amended third-party complaint. On November 2, 2011, Innovative answered IWC's cross-claims.
II. 112 CPS'S AND IWC'S MOTION TO DISMISS PLAINTIFF'S CLAIMS
Pursuant to CPLR 3211, a party may move for an order dismissing a cause of action against it on the ground that the pleading fails to state a cause of action. In deciding the motion, the court must liberally construe the pleading, " accept the alleged facts as true, accord [the non-moving party] the benefit of every possible favorable inference, and determine only whether the alleged facts fit within any cognizable theory." ( Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511  ).
Arguing that the New York Attorney General has the exclusive right to pursue claims related to a cooperative offering plan, 112 CPS contends that plaintiff's first cause of action must be dismissed for lack of standing, and is joined by IWC in asserting that plaintiff's first and second causes of action are barred by the limited warranties in the offering plan. They also maintain that plaintiff's second cause of [970 N.Y.S.2d 685] action must fail absent any housing warranty implied under the common law. IWC also argues that the issuance of the certificate of occupancy is presumptive evidence that the building met the specifications set forth in the offering plan.
Plaintiff contends that 112 CPS waived its right to assert a lack of standing when it failed to include the argument in its answer or in a pre-answer motion, and denies that the Martin Act deprives it of standing. It maintains that an implied housing warranty exists under common law and is not barred by the offering plan, and that its breach of contract claim is separate from, and not precluded by, the limited warranty in the offering plan. Plaintiff also contends that 112 CPS cannot ...