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Nassau County v. New York State Urban Development Corp.

Supreme Court of New York, Second Department

August 7, 2013

Nassau County, plaintiff,
v.
New York State Urban Development Corporation, doing business as Empire State Development Corporation, et al., defendants third-party plaintiffs, Tishman Construction Corporation of New York, defendant second third- party plaintiff-appellant, et al., defendants; Roy Kay, Inc., et al., third-party defendants/second third-party defendants-respondents, et al., third-party defendant, et al., third-party defendant/second third-party defendant. Index No. 2750/04

Goetz Fitzpatrick LLP, New York, N.Y. (Thomas S. Finegan and Joel G. MacMull of counsel), for defendant second third-party plaintiff-appellant.

Cullen and Dykman LLP, Garden City, N.Y. (Douglas J. Bohn and Peter J. Mastaglio of counsel), for third-party defendant/second third-party defendant-respondent Roy Kay, Inc.

Steven G. Rubin & Associates, P.C., Jericho, N.Y. (Susan B. Rubin of counsel), for third-party defendant/second third-party defendant-respondent Anron Heating and Air Conditioning, Inc.

McElroy Deutsch Mulvaney & Carpenter, LLP, New York, N.Y. (Mark A. Rosen of counsel), for third party defendant/second third-party defendant-respondent Stonewall Contracting Corp.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant second third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered May 31, 2011, as granted those branches of the respective motions of the third-party defendants/second third-party defendants Roy Kay, Inc., and Keyspan Corporation, Anron Heating and Air Conditioning, Inc., and Stonewall Contracting Corp. which were pursuant to CPLR 3211(a) to dismiss the second third-party complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly granted those branches of the respective motions of the third-party defendants/second third-party defendants Roy Kay, Inc., and Keyspan Corporation, Anron Heating and Air Conditioning, Inc., and Stonewall Contracting Corp. which were pursuant to CPLR 3211(a) to dismiss the second third-party complaint insofar as asserted against each of them. The second third-party complaint, insofar as asserted against each of them, failed to state a cause of action sounding in either breach of contract (see Pile Found. Constr. Co. v Berger, Lehman Assoc., 253 A.D.2d 484, 486; see also Van-Tulco, Inc. v Long Is. Light. Co., 214 A.D.2d 725, 726) or contribution or indemnification (see Galvin Bros., Inc. v Town of Babylon, N.Y., 91 A.D.3d 715). The cause of action alleging negligent misrepresentation, insofar as asserted against each of them, was time-barred (see CPLR 3211[a][5]; Fandy Corp. v Lung-Fong Chen, 262 A.D.2d 352, 352-353) and failed to state a cause of action (see Ideal Steel Supply Corp. v Anza, 63 A.D.3d 884, 885).

DILLON, J.P., DICKERSON, MILLER and HINDS-RADIX, JJ., concur.


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