Board of Mgrs. of the Philip House Condominium v. 141 E. 88th St., LLC

Full text

Board of Mgrs. of the Philip House Condominium v 141 E. 88th St., LLC 2025 NY Slip Op 32070(U) June 11, 2025 Supreme Court, New York County Docket Number: Index No. 153289/2019 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 153289/2019 NYSCEF DOC. NO. 659 RECEIVED NYSCEF: 06/11/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 153289/2019 THE BOARD OF MANAGERS OF THE PHILIP HOUSE CONDOMINIUM, ON BEHALF OF ITS INDIVIDUAL UNIT MOTION DATE 01/09/2025 OWNERS, MOTION SEQ. NO. 013 Plaintiff,

-v- 141 EAST 88TH STREET, LLC,THE CHESHIRE GROUP, DECISION + ORDER ON L.L.C., SUSAN HEWITT, JENNIFER STEIG, JOHN DOES, MOTION JOHN DOE CORPORATIONS,

Defendant. ---------------------------------------------------------------------------------X

141 EAST 88TH STREET, LLC, THE CHESHIRE GROUP, Third-Party L.L.C., SUSAN HEWITT, JENNIFER STEIG Index No. 595567/2020

Plaintiff,

-against-

TEKTON BUILDERS, LLC, EDWARDS & ZUCK, P.C., ARCT ARCHITECTURE, P.C., STERLING PROJECT DEVELOPMENT GROUP, LLC, METAL AND GLASS SOLUTIONS

Defendant. --------------------------------------------------------------------------------X

141 EAST 88TH STREET, LLC, THE CHESHIRE GROUP, Second Third-Party L.L.C. Index No. 595220/2022

Plaintiff,

-against-

RETCON MECHANICAL CORP., CENTRIA, GALAXY METAL PRODUCTS, SUPER STUD BUILDING PRODUCTS, INC., TRI-STATE FIREPROOFING INC., DOMANI INSPECTION SERVICES, INC., GALICIA CONTRACTING & RESTORATION CORP., LUKE LICALZI P.E., P.C., FIRST SERVICE RESIDENTIAL, RICHTER & RATNER CONTRACTING CORP., FORT-CICA ROOFING SHEETMETAL WATERPROOFING, COD MECHANICAL CORP., SUPERIOR CONCRETE & MASONRY CORP., ROBERT SILMAN

153289/2019 BOARD OF MANAGERS OF THE vs. 141 EAST 88TH STREET, LLC Page 1 of 4 Motion No. 013

INDEX NO. 153289/2019 NYSCEF DOC. NO. 659 RECEIVED NYSCEF: 06/11/2025

ORDERED and ADJUDGED that Third-Party Defendant First Service Residential’s

motion to dismiss the Second-Third Party Complaint is granted with regards to the second, third,

and sixth causes of action asserted against First Service Residential is granted and those causes

of action are hereby dismissed; and it is further

ADJUDGED that Third-Party Defendant First Service Residential’s motion to dismiss is

otherwise denied.

6/11/2025 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

153289/2019 BOARD OF MANAGERS OF THE vs. 141 EAST 88TH STREET, LLC Page 4 of 4 Motion No. 013

4 of 4 [* 4]

Footnotes

[1] of 4 [* 1] ASSOCIATES Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 013) 564, 565, 566, 567, 568, 577, 601, 602, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 634 were read on this motion to/for DISMISSAL . Upon the foregoing documents, the Third-Party Defendant’s motion to dismiss is granted in part and denied in part.1 This action arises out of alleged breach of contract and violations of the Debt and Creditor Law pursuant to an offering plan and contract between the parties. Second Third-Party Defendant First Service Residential (“FSR”) brings this motion to dismiss the Second Third- Party Complaint filed by Second Third-Party Plaintiffs 141 East 88th Street, LLC and The Cheshire Group, LLC. The Second Third-Party Complaint asserts claims for breach of contract, contractual indemnification, breach of contractual obligation to procure liability insurance, contribution, common law indemnification, and negligence related to a conversion of the building located at 141 East 88th Street, New York, NY. FSR brings its motion to dismiss pursuant to CPLR § 3211(a)(1) and (7). It is well settled that when considering a motion to dismiss pursuant to CPLR § 3211, "the pleading is to be liberally construed, accepting all the facts alleged in the pleading to be true and according the plaintiff the benefit of every possible inference." Avgush v. Town of Yorktown, 303 A.D.2d 340,

[755] N.Y.S.2d 647 [2d Dept. 2003]. Dismissal of the complaint is warranted "if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery." Connaughton v. Chipotle Mexican Grill, Inc, 29 N.Y.3d 137, 142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 [2017]. 1 The Court would like to thank Jason Lowe, Esq., Special Master to the Court, for his assistance in this matter. 153289/2019 BOARD OF MANAGERS OF THE vs. 141 EAST 88TH STREET, LLC Page 2 of 4 Motion No. 013 2 of 4 [* 2] CPLR § 3211(a)(1) allows for a complaint to be dismissed if there is a "defense founded upon documentary evidence." Dismissal is only warranted under this provision if "the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." Leon v. Martinez, 84 N.Y.2d 83, 88, 638 N.E.2d 511, 614 N.Y.S.2d 972 [1994]. FSR’s motion is based on a contract and amendment. FSR argues that it was only contracted to act as the managing agent for the building and that FSR’s duties in connection to the conversion project include only “seeing that the work is done with as little interference or interruption to Building services or otherwise (including with respect to tenants) as possible, and for seeing that all other reasonable precautions are taken to preserve and protect the Building and property of the residents.” However, this is not true. This argument ignores the language of the agreement which also requires FSR to “see[] that all reasonable precautions are taken to preserve and protect the Building and the property of the Residents.” Therefore, the documentary evidence does not conclusively establish a defense as a matter of law as to the first cause of action (breach of contract), fourth (contribution), and fifth (common law indemnification) causes of action. However, the second cause of action seeks recovery for contractual indemnification and the third cause of action seeks recovery for the breach of a contractual duty to procure insurance. Third-Party Plaintiffs fail to cite any contractual provision which supports either of those causes of action. The sixth cause of action sounds in negligence. FSR argues that this cause of action is duplicative of the first cause of action for breach of contract. Third-Party Plaintiffs fail to explain how this cause of action is not duplicative. Accordingly, it is hereby 153289/2019 BOARD OF MANAGERS OF THE vs. 141 EAST 88TH STREET, LLC Page 3 of 4 Motion No. 013 3 of 4 [* 3]