The opinion
Board of Mgrs. of the 15 Union Sq. W. Condominium
v BCRE 15 Union Sq. W. LLC
2024 NY Slip Op 31330(U)
April 16, 2024
Supreme Court, New York County
Docket Number: Index No. 162500/2015
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. 162500/2015
NYSCEF DOC. NO. 399 RECEIVED NYSCEF: 04/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
---------------------------------------------------------------------------------X INDEX NO. 162500/2015
BOARD OF MANAGERS OF THE 15 UNION SQUARE
WEST CONDOMINIUM, MOTION DATE 11/16/2023
Plaintiff, MOTION SEQ. NO. 008
-v-
BCRE 15 UNION SQUARE WEST LLC,MOSHE AZOGUI,
ISSAC HERA, BCRE 15 USW HOLDINGS LLC,BCRE 15
DECISION + ORDER ON
USW SECOND LLC,BCRE 15 USW CORP, BCRE
SERVICES LLC,BCS USA LLC,BRACK CAPITAL REAL MOTION
ESTATE USA CORP,
Defendant.
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BCRE 15 UNION SQUARE WEST LLC, MOSHE AZOGUI, Third-Party
ISSAC HERA, BCRE 15 USW HOLDINGS LLC, BCRE 15 Index No. 595428/2023
USW SECOND LLC, BCRE 15 USW CORP, BCRE SERVICES
LLC, BCS USA LLC, BRACK CAPITAL REAL ESTATE USA
CORP
Plaintiff,
-against-
CARDRONA, INC., J&R GLASSWORKS, INC., RCI
PLUMBING, CPN MECHANICAL, INC., L.E.A. ELECTRIC
CORP., LIGHTING MANAGEMENT, INC., SAINT-GOBAIN
GLASS EXPROVER NORTH AMERCA CORP. N/K/A SAINT-
GOBAIN GLASS CORPORATION, ALLIED METAL
ENTERPRISES, INC., BLUE JAY CONSTRUCTION, INC., A
EAGLES, INC., DIRECTOR DOOR INDUSTRIES, LTD.,
PERKINS EASTMAN ARCHITECTS, P.C., GEIGER
ENGINEERING, MARINO, GERAZOUNIS & JAFFE
ASSOCIATES, INC. A/K/A MG ENGINEERING, GILSANZ
MURRAY STEFICEK, LLP, VICENTE WOLF ASSOCIATES,
ODA ARCHITECTURE, ROBERT GERMAN, P.E., ENDLESS
POOLS, NY LOFT KITCHENS & HOME INTERIORS,
SPECIAL TREATMENT GC CORP., HI-I, LLC, SPRAY TECH
CORPORATION, LONG ISLAND SWIMMING POOL
SERVICE, JOMAR MECHANICAL, MIRAGE CONTRACTING
CORP., NEW LINE STONE CO., INC., MC CONSTRUCTION
CONSULTING, INC., CABRERA CONSTRUCTION,
VANGUARD CONSTRUCTION SERVICES, JOHN DOES 1-
10, ABC CORPORATIONS 1-10
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Motion No. 008
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Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 008) 261, 262, 263, 264,
265, 266, 267, 268, 269, 278, 281, 282, 283, 284, 285, 286, 287, 296, 340
were read on this motion to/for DISMISS .
Background
The underlying action arises from the renovation of a luxury condominium. In 2015,
Board of Managers of the 15 Union Square West Condominium (“15 Union Square West”) filed
suit against BCRE 15 Union Square West LLC (“BCRE”), among other defendants. In 2023,
BCRE commenced this Third-party action against several defendants including Perkins Eastman
Architects P.C. (“Perkins Eastman”) for breach of contract, professional negligence, and
contractual indemnification. Perkins Eastman now moves to dismiss BCRE’s amended
complaint pursuant to CPLR 3211(a)(1) and (a)(7). BCRE opposes.
Standard of Review
On a motion to dismiss the court “merely examines the adequacy of the pleadings.” The
Court must “accept as true each and every allegation made by plaintiff and limit our inquiry to the
legal sufficiency of plaintiff’s claim.” Davis v Boeheim, 24 N.Y.3d 262, 268 (2014) (internal
citations omitted).
Under CPLR 3211 (a)(1), a dismissal is warranted only 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 (1994) (emphasis added). “[S]uch motion may be appropriately
granted only where the documentary evidence utterly refutes plaintiff’s factual allegations.”
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Motion No. 008
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Goshen v. Mut. Life Ins. Co., 98 N.Y.2d 314, 326 (2002) (emphasis added). A paper will qualify
as “documentary evidence” only if it satisfies the following criteria: (1) it is “unambiguous”; (2)
it is of “undisputed authenticity”; and (3) its contents are “essentially undeniable”. VXI Lux Holdco
S.A.R.L. v SIC Holdings, LLC, 171 A.D.3d 189, 193 (1st Dept. 2019). “[T]he documentary
evidence, i.e., the affidavits and emails of North Shore and Inter-Reco personnel, do not qualify as
‘documentary evidence” for purposes of CPLR 3211 (a) (1).” United States Fire Ins. Co. v. North
Shore Risk Mgt., 114 A.D.3d 408, 409 (1st Dept. 2014)
“In assessing a motion under CPLR 3211 (a) (7), however, a court may freely consider
affidavits submitted by the plaintiff to remedy any defects in the complaint and “the criterion is
whether the proponent of the pleading has a cause of action, not whether he has stated one” Leon
v. Martinez, 84 N.Y.2d 83, 88. “What the Court of Appeals has consistently said is that evidence
in an affidavit used by a defendant to attack the sufficiency of a pleading “will seldom if ever
warrant the relief [the defendant] seeks unless [such evidence] establish[es] conclusively that
plaintiff has no cause of action”. Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc.,
115 A.D.3d 128, 134 [1st Dept. 2014] (emphasis added). “[T]he Court of Appeals has made clear
that a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable
claim.” Id.
Discussion
I. Breach of Contract
Perkins Eastman moves to dismiss BCRE’s breach of contract claim on the basis that it is
time barred under the parties’ contract. Perkins Eastman asserts that as the Temporary Certificate
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Motion No. 008
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of Occupancy was issued on December 9, 2008, the latest BCRE could bring suit under New
York’s applicable statute of limitations was December 9, 2011.
In relevant part, the parties’ architectural services agreement between the parties provides,
§ 2. 9. l .10 All legal causes of action between the parties to this Agreement shall accrue
and any applicable statute of repose or limitation shall begin to run not later than the
date of Substantial Completion. If the act or failure to act complained of occurs after
the date of Substantial Completion, then the date of final completion shall be used but
in no event shall any statute of repose or limitation begin to run any later than the date
on which the Architect's services are completed or terminated.
§ 1.5.9 If the services covered by this Agreement have not been completed within sixteen 16
months of the date of Substantial Completion, through no fault of the Architect, extension of
the Architect's services beyond thot time shall be compensated as provided in Section 1.5 .2.
The date of Substantial Completion shall be the date upon which a Temporary
Certificate of Occupancy is issued by the construction code enforcement agency having
jurisdiction over the Project.
The Court finds that pursuant to the parties’ contract, BCRE’s breach of contract claim
against Perkins Eastman is untimely. To the extent that BCRE’s breach of contract claim is based
on acts or non-acts which are alleged to have occurred prior to or on the date the Temporary
Certificate of Occupancy was issued, those claims are time barred pursuant to Sections 2.9.1.10
and Section 1.5.9 of the contract. The applicable statute of limitations here is three years. CPLR
214(6). The Temporary Certificate of Occupancy was issued on December 9, 2008. As such,
BCRE would have had to file suit by December 9, 2011. However, to the extent that any of
plaintiff’s allegations accrued after the Temporary Certificate of Occupancy, the parties’ contract
states the latest the statute of limitations could accrue would be the date Perkins Eastman
completed its services. Here, Perkins Eastman stopped working on the project in October of
2011. As such, pursuant to the contract, the latest date BCRE could have filed suit for its breach
of contract claim was October 2014. As BCRE filed suit May 11, 2023, the suit is untimely.
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Motion No. 008
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In opposition, BCRE calculates the accrual date for the purposes of the statute of
limitations should be July 18, 2019, the final completion date. While the Court agrees with
Perkins Eastman that the latest accrual date for the statute of limitations is when Perkins Eastman
ceased its work on the project, even arguendo if the accrual date is July 18, 2019, the suit is still
untimely. BCRE contends that due to the 228-day extension granted by Governor Cuomo
combined with its filing of notice of claim tolled the statute of limitations for a total of 348 days,
thus its complaint timely. Here, the Court finds that CPLR 214, which tolls the state of
limitations when filing a notice of claim, is inapplicable in the present case. CPLR 214 concerns
claims for personal injury, wrongful death or property damage, or a third-party claim arising out
of personal injury. As such, CPLR 214 is inapplicable to BCRE’s third party breach of contract
claim. As such, even applying the 228-day extension by Governor Cuomo, the latest BCRE had
to file its complaint was March 5, 2023. Therefore, for the reasons set forth above, BCRE’s
breach of contract claim is dismissed as untimely.
II. Professional Negligence
Next, Perkins Eastman contends BCRE’s professional negligence claim must be
dismissed on the grounds that it is duplicative of the breach of contract claim. Perkins Eastman
argues BCRE has failed to allege any duty independent of the contract has been violated. In
opposition, BCRE argues that under New York law, an architect has legal duties independent of
its contract and the damages are not necessarily duplicative, therefore it has a basis to plead a
separate cause of action. Moreover, BCRE argues that its professional negligence claims are
based on allegations that Perkins Eastman’s work contained architectural deficiencies that arise
from national or local policy, rather than specific provisions of the contract.
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Motion No. 008
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Here, the Court finds BCRE’s professional negligence claim duplicative of its breach of
contract claim, therefore warranting dismissal. New York Courts have consistently recognized
breach of contract claims are not to be considered a tort unless a legal duty independent of the
contract itself has been violated. See Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382,
389 (1987).
In certain circumstances, New York Courts have imposed an independent duty based on
the nature of the services performed and the defendant's relationship with its customer. This duty
may be found where the defendant performs a service affected with a significant public interest
and where the failure to perform the service carefully and competently can have catastrophic
consequences. Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 N.Y.3d 704 (2018).
However, absent this heightened element, where plaintiff is essentially seeking enforcement of
the bargain, the action should proceed under a contract theory. Id. Here the Court finds BCRE’s
professional negligence claim fails to comport with the limited circumstances where in the Court
will impose a separate duty outside of the parties’ contract. As plead, BCRE’s professional
negligence claim is duplicative of its breach of contract claim and is therefore dismissed.
III. Contractual Indemnification
Finally, Perkins Eastman moves to dismiss BCRE’s contractual indemnification claim. In
opposition, BCRE contends that Perkins Eastman’s position that the accrual clause is applicable
to indemnification claims that exist because of a third party asserting a claim, creates a period of
limitation for such claims, that is unreasonably short, and in many cases, simply non-existent.
The Court finds this argument unavailing. While BCRE may be correct that the contract
provisions create a likelihood that most indemnification claims will be time barred, New York
Courts have repeatedly held that when sophisticated parties enter into a contract, the contract
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should be enforced according to its terms. 301 E. 60th St. LLC v. Competitive Solutions LLC, 217
A.D.3d 79 (2023); see also Matter of Part 60 Put-Back Litig., 36 N.Y.3d 342 (2020). Here the
Court finds that both parties to the contract are sophisticated and the contract terms are clear and
unambiguous. As such, the Court finds pursuant to the explicit terms of the contract, BCRE’s
contractual indemnification claims are time barred for the same reason its breach of contract
claim is untimely.
Accordingly, it is hereby
ADJUGED that Perkins Eastman’s motion to dismiss is granted; and it is further
ORDERED that the Clerk enter judgment accordingly.
4/16/2024
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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Motion No. 008
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