Opinion
No. 2021-03529 Index No. 504783/19
09-18-2024
Board of Managers of the 37, 39 Madison Street Condominium, respondent, v. 31 Madison Development, LLC, et al., appellants.
Naidich Wurman LLP, Great Neck, NY (Robert P. Johnson and Richard S. Naidich of counsel), for appellants. Stephen C. Giametta & Associates, P.C., Bohemia, NY, for respondent.
Naidich Wurman LLP, Great Neck, NY (Robert P. Johnson and Richard S. Naidich of counsel), for appellants.
Stephen C. Giametta & Associates, P.C., Bohemia, NY, for respondent.
ANGELA G. IANNACCI, J.P., PAUL WOOTEN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated November 19, 2020. The order, insofar as appealed from, denied those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the first through fourth causes of action.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss so much of the first cause of action as sought consequential damages and to dismiss the second through fourth causes of action, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff, Board of Managers of the 37, 39 Madison Street Condominium, is the board of managers of a 12-unit condominium building located in Brooklyn. In 2019, the plaintiff commenced this action against the sponsor and developer of the condominium, the defendant 31 Madison Development, LLC, and two of the sponsor's principals, the defendants Dimitrios Politis and Yossef Boniel, among other things, to recover damages for defective construction of certain of the condominium's common areas. The complaint alleged, inter alia, causes of action to recover damages for breach of contract (first cause of action), unjust enrichment (second cause of action), breach of implied housing merchant warranty (third cause of action), and negligence (fourth cause of action). The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated November 19, 2020, the Supreme Court, among other things, denied those branches of the defendants' motion which were to dismiss the first through fourth causes of action. The defendants appeal.
"On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference" (Granada Condominium III Assn. v Palomino, 78 A.D.3d 996, 996). "'A motion to dismiss a complaint pursuant to CPR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law'" (Mohawk Constr. & Supply Co., Inc. v Walsh/Consigli JV, 222 A.D.3d 965, 966-967, quoting Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d 714, 715; see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326). "On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Gold v 22 St. Felix, LLC, 219 A.D.3d 588, 590; see Leon v Martinez, 84 N.Y.2d 83, 87; Garendean Realty Owner, LLC v Lang, 175 A.D.3d 653, 653). "[T]he criterion is whether the proponent of [a] pleading has a cause of action, not whether he [or she] has stated one" (Leon v Martinez, 84 N.Y.2d at 88 [internal quotation marks omitted]).
The Supreme Court should have granted that branch of the defendants' motion which was to dismiss so much of the first cause of action, alleging breach of contract, as sought consequential damages. In support of their motion, the defendants submitted, among other things, a limited warranty that had been incorporated into the purchase agreements between the sponsor and unit owners, which expressly stated, "[t]he [s]ponsor's [l]imited [w]arranty excludes all consequential, incidental, special damages and indirect damages." This documentary evidence conclusively established a defense to so much of that cause of action as sought consequential damages as a matter of law (see Mohawk Constr. & Supply Co., Inc. v Walsh/Consigli JV, 222 A.D.3d 965; Noble Thread Corp. v Vormittag Assoc., 305 A.D.2d 386, 387).
Moreover, the Supreme Court should have granted those branches of the defendants' motion which were to dismiss the second through fourth causes of action, sounding in unjust enrichment, breach of implied housing merchant warranty, and negligence. Even according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 N.Y.2d at 87), the defendants conclusively established that these causes of action are precluded by the purchase agreement and limited warranty (see Fumarelli v Marsam Dev., 92 N.Y.2d 298, 303; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 N.Y.2d 382, 388; Avery v WJM Dev. Corp., 216 A.D.3d 887, 889).
The defendants' remaining contentions are without merit.
IANNACCI, J.P., WOOTEN, GENOVESI and DOWLING, JJ., concur.