Opinion
03-08-2016
The BOARD OF MANAGERS OF the A BUILDING CONDOMINIUM, et al., Plaintiffs, v. 13TH & 14TH STREET REALTY LLC, et al., Defendants, Crystal Curtain Wall System Corp., et al., Defendants–Appellants. 13th & 14th Street Realty LLC, et al., Third–Party Plaintiffs, Crystal Curtain Wall System Corp., et al., Third–Party Plaintiffs–Appellants, v. Hudson Meridian Construction Group, Third–Party Defendant–Appellant, Tingwall, Inc., et al., Third–Party Defendants. Hudson Meridian Construction Group LLC, Second Third–Party Plaintiff–Appellant, v. Demar Plumbing Corp., et al., Second Third–Party Defendants. Hudson Meridian Construction Group, Third Third–Party Plaintiff–Appellant, v. Structural Group, Inc., et al., Third Third–Party Defendants, Marino Gerazounis & Jaffe Associates Inc., et al., Third Third–Party Defendants–Respondents.
Goldberg Segalla LLP, Garden City (Brendan T. Fitzpatrick of counsel), for Crystal Curtain Wall System Corp. and Crystal Window and Door Systems, Ltd., appellants. Marshall Dennehey Warner Coleman & Goggin, P.C., New York (James Freire of counsel), for Hudson Meridian Construction Group LLC, sued herein as Hudson Meridian Construction Group, appellant. Milber Makris Plousadis & Seiden, LLP, White Plains (Leonardo D'Alessandro of counsel), for Gordon H. Smith Corporation, respondent. Zetlin & DeChiara LLP, New York (James H. Rowland of counsel), for MG Engineering, P.C., sued herein as Marino Gerazounis & Jaffe Associates Inc., respondent. Donovan Hatem LLP, New York (Scott K. Winikow of counsel), for Langan Engineering and Environmental Services, Inc. and GZA Geoenvironmental Inc., respondents. Babchik & Young LLP, White Plains (Matthew C. Mann of counsel), for Gilsanz Murray Steficek, LLP, respondent.
Goldberg Segalla LLP, Garden City (Brendan T. Fitzpatrick of counsel), for Crystal Curtain Wall System Corp. and Crystal Window and Door Systems, Ltd., appellants.
Marshall Dennehey Warner Coleman & Goggin, P.C., New York (James Freire of counsel), for Hudson Meridian Construction Group LLC, sued herein as Hudson Meridian Construction Group, appellant.
Milber Makris Plousadis & Seiden, LLP, White Plains (Leonardo D'Alessandro of counsel), for Gordon H. Smith Corporation, respondent.
Zetlin & DeChiara LLP, New York (James H. Rowland of counsel), for MG Engineering, P.C., sued herein as Marino Gerazounis & Jaffe Associates Inc., respondent.
Donovan Hatem LLP, New York (Scott K. Winikow of counsel), for Langan Engineering and Environmental Services, Inc. and GZA Geoenvironmental Inc., respondents.
Babchik & Young LLP, White Plains (Matthew C. Mann of counsel), for Gilsanz Murray Steficek, LLP, respondent.
Opinion
Orders, Supreme Court, New York County (Barbara Jaffe, J.), entered December 22, 2014 and December 26, 2014, which, insofar as appealed from as limited by the briefs, granted third third-party defendants Gilsanz Murray Steficek, LLP's (Gilsanz), Marino Gerazounis & Jaffe Associates Inc.'s (Marino), and Langan Engineering and Environmental Services, Inc. (Langan) and GZA GeoEnvironmental Inc.'s (GZA) motions to dismiss the claims of third third-party plaintiff Hudson Meridian Construction Group LLC, for contribution against them, unanimously affirmed. Order, same court and Justice, entered December 22, 2014, which, insofar as appealed from as limited by the briefs, granted third third-party defendant Gordon H. Smith Corporation's (Gordon) motion to dismiss Hudson's third third-party claim for contribution against it, and granted Gordon's motion to dismiss defendants/ third-party plaintiffs Crystal Curtain Wall System Corp. and Crystal Window and Door Systems, Ltd.'s (collectively, Crystal) cross claim for contribution against it, unanimously affirmed, with costs.
The motion court correctly dismissed Hudson's contribution claims against Gilsanz, Marino, Langan, GZA, and Gordon (collectively, respondents), and Crystal's cross claim for contribution against Gordon. Those claims are barred, because plaintiffs' complaint seeks to recover only economic losses resulting from breach of contract (see Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 26–29, 523 N.Y.S.2d 475, 517 N.E.2d 1360 [1987]; Trump Vil. Section 3 v. New York State Hous. Fin. Agency, 307 A.D.2d 891, 897, 764 N.Y.S.2d 17 [1st Dept.2003], lv. denied 1 N.Y.3d 504, 775 N.Y.S.2d 780, 807 N.E.2d 893 [2003]; Rockefeller Univ. v. Tishman Constr. Corp. of N.Y., 232 A.D.2d 155, 155–156, 647 N.Y.S.2d 513 [1st Dept.1996], lv. denied 89 N.Y.2d 811, 657 N.Y.S.2d 404, 679 N.E.2d 643 [1997] ).
Because Hudson had successfully argued on its prior summary judgment motion that plaintiffs are seeking only economic losses arising from a breach of contract, it may not now take the inconsistent position that plaintiffs are seeking other damages as well (see D & L Holdings v. Goldman Co., 287 A.D.2d 65, 71, 734 N.Y.S.2d 25 [1st Dept.2001], lv. denied 97 N.Y.2d 611, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002] ). In any event, Hudson's current argument is unavailing. Plaintiffs' allegations that respondents negligently performed their work sound in breach of contract (see Clark–Fitzpatrick, Inc. v. Long Is. R.R Co., 70 N.Y.2d 382, 389–390, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987]; Board of Mgrs. of Soho N. 267 W. 124th St. Condominium v. NW 124 LLC, 116 A.D.3d 506, 507, 984 N.Y.S.2d 17 [1st Dept.2014] ).
Hudson's argument that respondents are liable in tort because the negligent performance of their duties launched a force or instrument of harm by creating or exacerbating a dangerous condition is unavailing, as Hudson failed to demonstrate the existence of a “dangerous condition” that caused plaintiffs' alleged injuries (see generally Espinal v.
Melville Snow Contrs., 98 N.Y.2d 136, 141–142, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). Further, respondents' alleged failure to properly perform their contractual duties does not amount to the creation or exacerbation of a hazardous condition (see id.; All Am. Moving & Stor., Inc. v. Andrews, 96 A.D.3d 674, 675, 949 N.Y.S.2d 17 [1st Dept.2012] ). For the same reasons, Crystal's argument that Gordon's work caused or exacerbated a “dangerous condition” is unavailing.
To the extent Crystal argues that it is entitled to contribution on a negligent misrepresentation theory, it never asserted such a cross claim. In any event, its claims of negligence, professional malpractice, and negligent misrepresentation all sound in breach of contract (see Board of Mgrs. of Soho N. 267 W. 124th St. Condominium, 116 A.D.3d at 507, 984 N.Y.S.2d 17; Children's Corner Learning Ctr. v. A. Miranda Contr. Corp., 64 A.D.3d 318, 323–324, 879 N.Y.S.2d 418 [1st Dept.2009] ).
We have considered the appealing parties' remaining contentions and find them unavailing.