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Simoni v. Fifth on Park Condo, LLC

Sup Ct, New York County

October 8, 2013

JOHN B. SIMONI, JR., Plaintiff,
v.
FIFTH ON THE PARK CONDO, LLC, EYTAN BENJAMIN, ROBERT EZRAPOUR, ARTIMUS CONSTRUCTION, INC., EVAN KASHANIAN, Defendants. Index No. 150839/13

Unpublished Opinion

DECISION AND ORDER

EILEEN A. RAKOWER, J.S.C.

This is a case alleging claims for breach of contract and fraud arising from Plaintiff John B. Simoni, Jr.'s ("Plaintiff) purchase of apartment 15K, located in the building known as Fifth on the Park Condominium, located at 1485 Fifth Avenue, New York, NY 10035.

Presently before the Court is Defendants' motion to dismiss the Complaint, pursuant to CPLR §3211 (a)(1) and (7) and Plaintiff s cross-motion, pursuant to CPLR §3025(b), to amend the Complaint to include a cause of action for breach of express limited warranty. Plaintiffs proposed amended Complaint does not add any allegations concerning its first and second causes of action for breach of contract and fraud respectively. Defendants oppose Plaintiffs cross motion to add a third cause of action.

After the filing of Defendants' motion, the action was discontinued as against defendants Eytan Benyamin, Robert Ezrapour, and Evan Kashania. The action remains as against defendants Fifth on the Park Condo, LLC ("Fifth on the Park Condo"), and Artimus Construction, Inc ("Artimus").

As alleged in the Complaint, Plaintiff resides in apartment 15K at the building known as Fifth on the Park Condominium, located at 1485 Fifth Avenue, New York, NY 10035 ("the Building"). Defendant Fifth on the Park Condo is alleged to be the sponsor of the Condominium. Defendant Artimus is alleged to be the Fifth on the Park Condo's general contractor/and or construction manager for some or all of the construction of the Building.

Plaintiff alleges that on or about May 31, 2012, he entered into a written purchase agreement with the Sponsor to purchase the Apartment, and under the terms of the Home Contract, "a) the Unit and the fixtures and the personal property contained therein are being sold and delivered as described the Offering Plan; b) Sponsor is obligated to construct the Building in accordance with all applicable codes and filed building plans and specifications as well as provisions of the FOP Offering Plan."

In this action, Plaintiff alleges that notwithstanding the representations made in the Home Contract and FOP Offering Plan, the Apartment he purchased "suffers from substantial design and construction defects, inadequate and negligent workmanship, missing and defective products and materials, deviations from the FOP Offering Plan, deviations from materials and construction and conditions called under all applicable laws and codes, deviations from the plans and specifications prepared for construction of the Building and Residential Units and conditions that show disregard for acceptable standards of quality."

The Complaint lists the alleged defects discovered to date, which include, the following: "failure to provide fire stopping around the United walls, penetration, and perimeter; failure to abide by the New York State energy code in that there is an absence of insulation in and around the Home windows and Heat Pump units and in that there is constant and substantial draft at and around the windows; failure to provide ventilation and exhaust in the master bedroom, second bedroom, kitchen; "failure to provide exhaust from the stove through the Common Element exhaust system even though the Revised Architect Report had no such limitation; "failure to supply exhaust ventilation for the dryer unit, " defective heat pumps and thermostat in the bedrooms, defective plumbing, defective installation/placement of dishwasher, and no permanent certificate of occupancy for the Apartment.

The Complaint alleges that despite demand to Fifth on the Park Condo, the Sponsor, Fifth on the Park Condo has failed and refused to cure the alleged defects.

Presently before the Court is Defendants' motion to dismiss the breach of contract and fraud claims of the Complaint.

CPLR §3211 provides, in relevant part:
(a) a party may move for judgment dismissing one or more causes of action asserted against ...

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