The opinion
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
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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.
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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.
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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
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NYSCEF DOC. NO. 659 RECEIVED NYSCEF: 06/11/2025
ASSOCIATES
Defendant.
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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.
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NYSCEF DOC. NO. 659 RECEIVED NYSCEF: 06/11/2025
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
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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
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