Opinion
12893 Index No. 155143/18 Case No. 2020-02067
01-19-2021
ELLINGTON OWNERS CORP. et al, Plaintiffs–Respondents–Appellants, v. 200 BRADHURST DEVELOPERS LLC et al., Defendants. West Manor Construction Corp., et al., Defendants–Appellants–Respondents.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Brian L. Battisti of counsel), for appellant-respondent. Rosenberg & Estis, P.C., New York (Alexander Lycoyannis of counsel), for respondents-appellants.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Brian L. Battisti of counsel), for appellant-respondent.
Rosenberg & Estis, P.C., New York (Alexander Lycoyannis of counsel), for respondents-appellants.
Webber, J.P., Mazzarelli, Gonza´lez, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 25, 2019, which, insofar as appealed from as limited by the briefs, granted defendants West Manor Construction Corp. and Bluestone Organization, Inc.'s motion to dismiss the complaint as against Bluestone and denied the motion to dismiss the causes of action for negligence and property damage as against West Manor, unanimously affirmed, with costs.
Plaintiffs, the residential unit owner and the board of the "cond-op," were not parties to the construction contract between defendants West Manor and Bluestone, the contractor defendants, and the sponsor defendants. Further, West Manor and Bluestone have not shown, at this stage of the proceeding, that their relationship with plaintiffs was the "functional equivalent of privity" (cf. Town of Oyster Bay v. Lizza Indus., Inc., 22 N.Y.3d 1024, 1030, 981 N.Y.S.2d 643, 4 N.E.3d 944 [2013] ; City School Dist. of City of Newburgh v. Stubbins & Assoc., 85 N.Y.2d 535, 626 N.Y.S.2d 741, 650 N.E.2d 399 [1995] ) which would cause plaintiffs' claims against these defendants to accrue upon completion of the construction. Thus, plaintiffs' claims as pleaded are not time-barred because they are subject to a three-year statute of limitations, which "begins to run when the structure collapses, or when the damage from the negligent construction otherwise becomes apparent" ( Mark v. Eshkar, 194 A.D.2d 356, 357, 598 N.Y.S.2d 255 [1st Dept. 1993] ; see Gordon v. Condominium, 102 A.D.3d 521, 521–522, 958 N.Y.S.2d 360 [1st Dept. 2013], affg 35 Misc.3d 1214[A], 2012 WL 1382441 [Sup. Ct., N.Y. County 2012], citing IFD Constr. Corp. v. Corddry Carpenter Dietz & Zack, 253 A.D.2d 89, 92, 685 N.Y.S.2d 670 [1st Dept. 1999] ; see also Public Serv. Mut. Ins. Co. v. 341–347 Broadway, LLC, 96 A.D.3d 473, 474, 946 N.Y.S.2d 149 [1st Dept. 2012] ). The complaint was correctly dismissed as against Bluestone, because, although it alleged that Bluestone was West Manor's alter ego, it failed to allege that Bluestone had abused the corporate form to injure plaintiffs (see Chase Manhattan Bank [N.A.] v. 264 Water St. Assoc. , 174 A.D.2d 504, 505, 571 N.Y.S.2d 281 [1st Dept. 1991] ).
We have considered defendants' remaining contentions, including whether the negligence and property damage claims are duplicative of the breach of contract claim, and find them unavailing.