The opinion
Board of Mgrs. of the 443 Greenwich St.
Condominium v SGN 443 Greenwich St. Owner LLC
2024 NY Slip Op 34308(U)
December 4, 2024
Supreme Court, New York County
Docket Number: Index No. 656934/2021
Judge: Joel M. Cohen
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. 656934/2021
NYSCEF DOC. NO. 997 RECEIVED NYSCEF: 12/04/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M
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BOARD OF MANAGERS OF THE 443 GREENWICH INDEX NO. 656934/2021
STREET CONDOMINIUM,
Plaintiff, MOTION DATE 07/11/2024
- V - MOTION SEQ. NO. 019
SGN 443 GREENWICH STREET OWNER LLC, SGN 443
GREENWICH STREET FEE OWNER LLC,SGN 443 DECISION+ ORDER ON
GREENWICH STREET ASSOCIATES LLC,JS MOTION
GREENWICH LLC,NB 443 GREENWICH STREET
LLC,NATHAN BERMAN, JACK BERMAN, MARC L.
FRIED, CETRNCRI ARCHITECTURE
PLLC,CETRARUDDY ARCHITECTURE D.P.C.,JOHN A.
CETRA, GREENWICH 2D LLC,GREENWICH 4D
LLC,GREENWICH 4H LLC,GREENWICH 3F
LLC,GREENWICH 4E LLC,GREENWICH 2F
LLC,GREENWICH PHO LLC,AVERY TRUST,
Defendants.
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SGN 443 GREENWICH STREET OWNER LLC, SGN 443 Third-Party
GREENWICH STREET FEE OWNER LLC, SGN 443 Index No. 595834/2023
GREENWICH STREET ASSOCIATES LLC, JS GREENWICH
LLC, NB 443 GREENWICH STREET LLC, NATHAN BERMAN,
JACK BERMAN, MARC FRIED
Plaintiffs,
-against-
UNIQUE ROOFING OF NEW YORK, INC., HORSEPOWER
ELECTRIC AND MAINTENANCE CORP., PRESERV
BUILDING RESTORATION MANAGEMENT
INCORPORATED, CADCO SALES CORP. D/B/A CHRISTIE
OVERHEAD DOORS, LLC & DIAMOND DOOR, COSENTINI
ASSOCIATES 2 LLC D/B/A TETRA TECH ENGINEERS,
ARCHITECTS & LANDSCAPE ARCHITECTS, P.C., CTS
GROUP ARCHITECTURE, PLANNING, P.A., DEMAR
PLUMBING CORP., WATERMARK DESIGNS, LLC, DIRECT
FLOORING, INC., DER SPECIAL TY PRODUCTS, LLC D/B/A
VIRTUWOOD FLOORING, HERITAGE MECHANICAL
SERVICES, INC., KSW MECHANICAL SERVICES, INC., LIF
INDUSTRIES INC. D/B/A LONG ISLAND FIREPROOF DOOR,
INC., FM NY, INC., ROCKAWAY CONTRACTING CORP., SD
STAIRS & RAILING CORP., SPRAY-RITE LLC D/B/A A-RITE
FIRE PROTECTION SERVICES LLC, URBAN-SUBURBAN
656934/2021 BOARD OF MANAGERS OF THE 443 GREENWICH STREET CONDOMINIUM vs. Page 1 of 6
SGN 443 GREENWICH STREET OWNER LLC ET AL
Motion No. 019
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NYSCEF DOC. NO. 997 RECEIVED NYSCEF: 12/04/2024
RECREATION, INC. D/B/A U.S. RECREATION, INC.
Defendants.
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PRESERV BUILDING RESTORATION MANAGEMENT Second Third-Party
INCORPORATED Index No. 596006/2023
Plaintiff,
-against-
EMPIRE RESTORATION GROUP INC.
Defendant.
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HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 019) 932, 933, 934, 935,
936,937,938,939,940,941,942,943,958,964,965,966,967,968,976
were read on this motion to DISMISS THIRD-PARTY COMPLAINT
Third-Party Defendant CTS GROUP ARCHITECTURE/PLANNING, P.A. ("CTS")
moves to dismiss the third-party claims asserted against it by the Sponsor Defendants. 1 The
Sponsor Defendants partially oppose this motion. For the following reasons, CTS's motion is
granted.
BACKGROUND
This case arises out the renovation, conversion, and sale of the premises located at 443
Greenwich Street, New York, New York 10013 ("the Premises"). The Amended Complaint
filed by Plaintiff Board of Managers of the 443 Greenwich Street Condominium ("Plaintiff')
1
Defendants/third-party plaintiffs, SGN 443 GREENWICH STREET OWNER LLC ("443
Owner"), SGN 443 GREENWICH STREET FEE OWNER LLC ("443 Fee"), SGN 443
GREENWICH STREET ASSOCIATES LLC ("443 Associates"), JS GREENWICH LLC
("JS"), NB 443 GREENWICH STREET LLC ("NB"), NATHAN BERMAN ("Nathan
Berman"), JACK BERMAN ("Jack") and MARC L. FRIED ("Fried") (hereinafter collectively
referred to as the "Sponsor Defendants").
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asserts claims against the Sponsor Defendants sounding in breach of contract, breach of fiduciary
duty, and fraud (see NYSCEF 937).
The Sponsor Defendants, in tum, commenced a third-party action against numerous
entities, including CTS, alleging four causes of action: common law indemnification (first cause
of action), common law contribution (second cause of action), contractual indemnification (third
cause of action), and breach of contract for failure to procure insurance (fourth cause of action)
(see NYSCEF 938 ["Third-Party Compl"]).
As relevant here, the Third-Party Complaint alleges that "[o]n or about August 9, 2012,
CTS GROUP entered into a subcontract with 443 Greenwich Street regarding the fa<;ade
restoration at the Project located at 443 Greenwich Street" (Third-Party Compl ,J64). It further
alleges that "[p ]ursuant to the subcontract, CTS GROUP agreed to indemnify, defend and hold
harmless Third-Party Plaintiffs to the fullest extent permitted by law. Pursuant to the subcontract,
CTS GROUP agreed to purchase and maintain commercial general liability insurance, and name
Third-Party Plaintiffs as additional insured" (id. ,J,J65-66).
The purported CTS "subcontract" attached to the Third-Party Complaint is a Proposal
addressed to and accepted by non-party 443 Developer LLC on August 9, 2012 ("the Proposal")
(NYSCEF 124; 936). The document contains no reference to indemnification or obtaining
insurance. The text of the Proposal ends with an offer to "discuss," asks the counterparty to sign
if the proposal is "appropriate," and indicates that CTS "will subsequently provide an AIA
Owner-Architect Agreement consistent with this Proposal." Below the countersignature by non-
party 443 Developer is the following handwritten note: "Terms and conditions to follow, to be
agreed upon. Non-binding proposal subject to execution of complete contract." No other
purported contract with CTS is referenced in or attached to the Third-Party Complaint.
656934/2021 BOARD OF MANAGERS OF THE 443 GREENWICH STREET CONDOMINIUM vs. Page 3 of 6
SGN 443 GREENWICH STREET OWNER LLC ET AL
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In response to Sponsor Defendants' Request for Interrogatories, CTS confirmed that it
provided plans, drawings, conditions assessments, specifications and related consultation
services in connection with the exterior fa9ade restoration at the Premises (NYSCEF 941 ,J6).
CTS now moves to dismiss the Third-Party Complaint as alleged against it pursuant to CPLR
§321 l(a)(l) and CPLR §321 l(a)(7). 2
DISCUSSION
On a motion to dismiss pursuant to CPLR 321 l(a)(7) for failure to state a claim, the court
is to "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every
possible favorable inference, and determine only whether the facts as alleged fit within any
cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87 [1994]). "A motion to dismiss
pursuant to CPLR 321 l(a)(l) should be granted only where the documentary evidence that forms
the basis of the defense utterly refutes the plaintiffs factual allegations, and conclusively
disposes of the plaintiffs claims as a matter of law" (Nero v Fiore, 165 AD3d 823, 826 [2d Dept
2018]).
The Sponsor Defendants' claims for contractual indemnification and failure to procure
insurance are dismissed. "The right to contractual indemnification depends upon the specific
language of the contract. The promise to indemnify should not be found unless it can be clearly
implied from the language and purpose of the entire agreement and the surrounding
circumstances" (Mogrovejo v HG Haus. Dev. Fund Co., Inc., 207 AD3d 461, 462-63 [2d Dept
2
In view of the Court's May 24, 2024 Decision and Order on third-party defendant Cosentini
Associates 2 LLC d/b/a Tetra Tech Engineers, Architects & Landscape Architects, P.C.'s motion
to dismiss the third-party complaint (NYSCEF 871; (NYSCEF 940 ["Tr"] at 50:3-9), the
Sponsor Defendants do not dispute the dismissal of the First Cause of Action (Common Law
Indemnification) and Second Cause of Action (Common Law Contribution) as against CTS
Group. Accordingly, these claims are dismissed.
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SGN 443 GREENWICH STREET OWNER LLC ET AL
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2022] [internal citations omitted]; see also Drzewinski v Atl. Scaffold & Ladder Co., Inc., 70
NY2d 774, 777 [1987] ["A party is entitled to full contractual indemnification provided that the
'intention to indemnify can be clearly implied from the language and purposes of the entire
agreement and the surrounding facts and circumstances"']).
Here, as noted, the Sponsor Defendants allege that CTS "entered into a subcontract with
443 Greenwich Street regarding the fa<;ade restoration" at the Premises whereby CTS agreed to
indemnify, defend, and hold harmless the third-party plaintiffs as well as maintain commercial
general liability insurance naming the third-party plaintiffs as additional insureds (Third-Party
Compl ,J,J64-66). However, the Sponsor Defendants fail to point to any language in the Proposal
-which is the only purported contract attached to the Third-Party Complaint-whereby CTS
agreed to indemnification or to maintain commercial general liability insurance.
The Sponsor Defendants do not dispute this. Rather, they argue that because CTS failed
to provide an AIA Owner-Architect Agreement consistent with the Proposal (see NYSCEF 936
["We will subsequently provide an AIA Owner-Architect Agreement consistent with this
Proposal"]), which they infer based on dealings with a different architect on the project would
have included indemnification and insurance provisions, this raises a question of fact as to
whether CTS Group breached a duty under the proposal to deliver the AIA Owner-Architect
Agreement. The Sponsor Defendants further argue that this raises issues of fact regarding
whether indemnification and additional insured provisions were reasonably contemplated by the
parties, and whether Sponsor Defendants were to be covered by those provisions.
This string of inferences is not at all persuasive. Even assuming for present purposes that
the Sponsor Defendants could enforce the terms of the CTS "Proposal," to which it was not a
party, there is simply no basis in the document to support an agreement by CTS to indemnify or
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to procure insurance. The document expressly contemplates a subsequent contract, which was
never executed. The bottom line is that based on the documentary evidence attached to the
Third-Party Complaint itself, there are no grounds to infer a binding agreement by CTS to
indemnify or to procure insurance for the benefit of Sponsor Defendants. Accordingly, CTS' s
motion to dismiss is granted.
The Court has considered the Sponsor Defendants' remaining arguments and finds them
unavailing.
Accordingly, it is
ORDERED that Third-Party Defendant CTS Group Architecture/Planning, P.A.'s
motion to Dismiss the Third-Party Complaint as alleged against it is GRANTED.
12/4/2024
DATE JOEL M. COHEN, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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SGN 443 GREENWICH STREET OWNER LLC ET AL
Motion No. 019
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