Opinion
303 A.D.2d 740 759 N.Y.S.2d 85 Regatta Condomidium Association, Respondent, v. Village of Mamaroneck et al., Appellant, et al., Defendants. Supreme Court of New York, Second Department March 31, 2003.
In an action, inter alia, to recover damages for negligent construction and design of a condominium complex, the defendant Newman & Novak Architects, P.C., appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered March 5, 2002, which denied its motion to dismiss the plaintiff's fifth cause of action, asserted solely against it, to recover damages, inter alia, for breach of contract.
OPINION
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the fifth cause of action is dismissed. The plaintiff condominium association commenced this action, inter alia, seeking damages arising from the alleged negligent design and construction of a condominium complex. The defendant Newman & Novak Architects, P.C. (hereinafter Newman & Novak) was the architect for the condominium complex. The Supreme Court denied the motion of Newman & Novak to dismiss the fifth cause of action, asserted solely against it, which sought damages from Newman & Novak, inter alia, for breach of contract. We reverse.
Based on case law more fully discussed in Regatta Condominium Assn. v Village of Mamaroneck (303 A.D.2d 739 [2003] [decided herewith]), the plaintiff failed to plead facts and circumstances that would give rise to a viable cause of action either as a third-party beneficiary of Newman & Novack's contract to perform architectural services (see Port Chester Elec. Constr. Corp. v Atlas, 40 N.Y.2d 652, 655-656 [1976]; Perron v Hendrickson/Scalamandre/Posillico [TV], 283 A.D.2d 627, 628 [2001]; Cahill v Lazarski, 226 A.D.2d 572, 573 [1996]; contra Board of Mgrs. of Alfred Condominium v Carol Mgt., 214 A.D.2d 380, 382-383 [1995]; Board of Mgrs. of Astor Terrace Condominium v Schuman, Lichtenstein, Claman & Efron, 183 A.D.2d 488 [1992]), or in tort arising from the alleged breach of the contract (see Church v Callanan Indus., 99 N.Y.2d 104, 111 [2002]; Espinal v Melville Snow Contrs., 98 N.Y.2d 136 [2002]; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 N.Y.2d 220 [1990]). Finally, no relationship akin to privity between Newman & Novak and the plaintiff was established (see Ossining Union Free School Dist. v Anderson, LaRocca, Anderson, 73 N.Y.2d 417 [1989]; Melnick v Parlato, 296 A.D.2d 443 [2002]). Thus, the fifth cause of action should have been dismissed.
Ritter, J.P., Santucci, Feuerstein and Schmidt, JJ., concur.