BOARD OF MANAGERS OF THE 129 LAFAYETTE STREET CONDOMINIUM, Plaintiff,
129 LAFAYETTE STREET LLC, WILLIAM FEGAN, JAMES MOONEY, ADRIAN STROIE, BERG FLYNN ARCHITECTURE PC, CHRISTOPHER BERG, MARINO GERAZOUNIS & JAFFE ASSOCIATES, INC., GILSANZ, MURRAY, STEFICEK, LLP, MORGAN CONSTRUCTION NY INC., TRIBEACH HOLDINGS, LLC, ETNA CONSULTING STRUCTURAL ENGINEERING P.C, and EDY ZINGHER, Defendants. Index No. 150397/11
For plaintiff: Luigi Rosabianca, Esq., Rosabianca & Assoc., PLLC
For Morgan: Constantine T. Tzifas, Esq., Constantine T. Tzifas, PLLC
For ETNA: Kenneth A. McLellan, Esq., Winget, Spadafora, et al.
DECISION AND ORDER
BARBARA JAFFE, J.:
Defendants Morgan Construction NY Inc. (Morgan), and ETNA Consulting Structural Engineering P.C. and ETNA principal Edy Zingher (collectively, ETNA) (collectively, movants), move pursuant to CPLR 3212 for orders dismissing the complaint. Plaintiff opposes.
Plaintiff is the board of the condominium located at 129 Lafayette Street in Manhattan. Defendant 129 Lafayette Street, LLC is the condominium's sponsor. ETNA was retained by sponsor's alleged construction manager, Tribeach Holdings, Inc. (Tribeach), to inspect and repair the building's facade and to issue a technical report of the work to the Department of Buildings. (NYSCEF 187, 188). Morgan was the general contractor for the building's construction pursuant to a contract dated April 26, 2004 whereby it succeeded T. Link Associates (T. Link) in that capacity. The contract provides that all guarantees and warranties made by T. Link in its original agreement with sponsor are undertaken by Morgan. (NYSCEF 144). Neither the Morgan contract nor the ETNA contract contains any mention of plaintiff or potential unit owners (NYSCEF 144, 188), and both Zingher and Morgan's president, signatories to their respective contracts, deny that plaintiff was a party to the agreement (NYSCEF 143, 172, 187).
In 2008, plaintiff commenced an action against sponsor and additional defendants, not including movants, entitled Bd. ofMgrs. of the 129 Lafayette St. Condominium v 129 Lafayette St. LLC, 103032/2008 (the prior action) alleging the existence of various building defects. By order dated May 29, 2009, another justice of this court dismissed the fraud, misrepresentation, and deceptive business practices causes of action, which had been premised on alleged false statements in the condominium offering plan (2009 order). (NYSCEF 167). By orders dated July 20 and November 16, 2011, the justice then dismissed the remaining causes of action against sponsor, including breach of contract, due to plaintiffs failure to comply with discovery orders (2011 orders). (NYSCEF 168, 169).
On or about October 7, 2011, plaintiff commenced the instant action against all but one of the same defendants in the prior action, and also against movants and Tribeach. As against Morgan, plaintiff alleges that it breached its agreement with sponsor, of which plaintiff asserts it is a third-party beneficiary. As against ETNA, plaintiff alleges that it breached its contract by failing to conduct competent inspections and falsely certifying that the facade was in good condition, fraud, for knowingly filing a false technical report certifying to the good condition of the fafade upon which purchasers detrimentally relied, and negligent misrepresentation, in that ETNA should have known that unit purchasers would rely on its representations and that ETNA breached its duty to convey accurate information owed to them when it filed a false technical report. As against Tribeach, plaintiff advances causes of action for breach of contract, gross negligence, negligent misrepresentation, and fraud, alleging that Tribeach breached its obligations to sponsor of which plaintiff alleges it is a third-party beneficiary, and alternatively, that Tribeach is a sponsor, co-owner or co-developer of the building along with sponsor, and is thus equally liable to plaintiff for the building defects. (NYSCEF 1).
By order dated July 12, 2012, the justice previously assigned to this part dismissed all claims brought against, as pertinent here, sponsor and Tribeach (2012 order). In dismissing the claims against sponsor, the court found that the 2009 and 2011 orders were on the merits and that the instant action arises from the same transaction. In dismissing the claims against Tribeach, it found that the condominium offering plan and incorporated purchasing agreement identify sponsor, not Tribeach, as owner and sponsor of the building, that the only party to the offering plan and purchasing agreement was sponsor, that there thus existed no contractual privity between plaintiff and Tribeach, and that in any event, the 2009 and 2011 dismissals bar claims against those parties in contractual privity with sponsor. The court also held that the "no representation" provision in the purchasing agreement, as well as the provision permitting purchasers to retain experts to inspect the premises, preclude plaintiff from establishing that it relied on representations made by Tribeach or any non-party to the plan and agreement. And, it found that plaintiff had failed to allege that any prospective owners were known to Tribeach or that Tribeach actively concealed defects from prospective owners, and that even if alleged, such claims are barred under the Martin Act. (NYSCEF 130).
II. MORGAN AND ETNA'S MOTIONS FOR SUMMARY JUDGMENT
A party seeking summary judgment must demonstrate, prima facie, that it is entitled to judgment as a matter of law, by presenting sufficient evidence to negate any material issues of fact. (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 314 ; WinegradvNew York Univ. Med. Ctr., 64 N.Y.2d 851, 853 ). If the movant meets this burden, the opponent must offer admissible evidence to demonstrate the existence of factual issues that require a trial. (Zuckerman v City of New York, 49 N.Y.2d 557, 562 ). If the movant does not meet this burden, the motion must be denied, regardless of the sufficiency of the opposition. (Winegrad, 64 N.Y.2d at 853).
A defendant moving for summary judgment must negate, prima facie, an essential element of the plaintiffs cause of action. (Rosabella v Metro. Trans. Auth, 23 A.D.3d 365, 366 [2d Dept 2005]). Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable. (Forest, 3 N.Y.3d 314). Moreover, to sustain its burden, a movant may not simply reveal gaps in its opponent's case, but must "affirmatively demonstrate the merit of its claim or defense." (Mennerich v Esposito, ...