The following papers read on this motion:Papers Numbered:

Penmark's Notice of Motion, Memo of Law in Support, Affs in Support;

Plaintiff's Memo of Law in Opposition; Affirmation in Opp;

Penmark's Memo of Law in Reply

1-7

Scarano's Notice of Motion, Memo of Law in Support; [*2]

Plaintiff's Memo of Law in Opposition; Affirmation in Opp;

Scarano's Memo of Law in Reply

8-12

Cucich's Notice of Motion, Memo of Law in Support;

Plaintiff's Memo of Law in Opposition; Affirmation in Opp

13-16

Seta's Notice of Motion, Memo of Law in Support;

Plaintiff's Memo of Law in Opposition; Affirmation in Opp;

Seta's Aff and Memo of Law in Reply

17-22

Schwartz's Notice of Motion, Memo of Law in Support;

Plaintiff's Memo of Law in Opposition; Affirmation in Opp;

Schwartz's Aff in Reply

23-27

Jaccarino's Notice of Motion, Memo of Law in Support;

Plaintiff's Memo of Law in Opposition; Affirmation in Opp;

Jaccarino's Aff in Reply

28-32

Sharon's Notice of Motion, Exhibit 3, Memo of Law in Support;

Plaintiff's Memo of Law in Opposition; Affirmation in Opp;

Ryder/Jaccarino Affidavit in Opp

33-37, 45

AE Design's Notice of Motion;

Plaintiff's Memo of Law in Opposition; Affirmation in Opp

38-40

Sponsors' Affs and Memo of Law in Opp to Motions to Dismiss Cross-claims; Documentary Supplement [*3]

41-44

Strict Liability - Fifth Cause of Action

Plaintiff's fifth cause of action is for strict liability against Sponsors, Cucich defendants, Scarano defendants, Penmark, Core, Ryder, Jaccarino, Seta defendants, and Reich defendants. Plaintiff complains that the Building fails to comply with various NYC building codes, including fire, ADA accessibility, electric, and exhaust, which present a hazard to health and safety to Building occupants.

Fraud - Sixth Cause of Action

Plaintiff claims in its sixth cause of action, for fraud, that the Offering Plan, marketing materials, and Sponsor Certification misrepresented the quality of the Building yet Sponsors disseminated these documents, and verbally ratified the representations in them, to prospective purchasers to induce them into purchasing residential units. Although plaintiff asserts this cause of action against, in addition to Sponsor defendants, Penmark, Core, and the Reich defendants, plaintiff does not plead any actions taken by those defendants and only generally states that "[d]efendants have actively misrepresented and concealed the conditions at the Building."

Professional Malpractice - Seventh Cause of Action

Plaintiff's seventh cause of action asserts claims for professional malpractice against Cucich defendants, Scarano Defendants, AE Design, Sharon Defendants, Schwartz Defendants, and Seta Defendants, alleging that they breached duties of care owed to unit owners to ensure that the Building was designed and constructed in accordance with the Plans and Specifications and in accordance with normal industry standards, resulting in a Building with dangerous conditions that will "invariably result in claims for damages and/or injuries."

Negligent Misrepresentation - Eighth Cause of Action

In its eighth cause of action, plaintiff claims that Cucich, Scarano, AE Design, Sharon, Scwartz, and Seta Defendants made representations and drew up plans and specifications to be used in the Offering Plan, yet failed to disclose the deficiencies in construction, which was " a gross departure from good and accepted practice."

Deceptive Trade Practices Under GLB § 349 - Ninth Cause of Action

Plaintiff's ninth cause of action asserts claims for deceptive trade practices under GBL § [*6]349, alleging that Sponsors disseminated the Offering Plan to prospective purchasers that contained misrepresentations about the quality of the Building, did not correct the misrepresentations, but instead verbally ratified them to induce purchasers. Although defendants Penmark, Core, and Reich Defendants are named in the caption, plaintiff's allegations describe no actions taken by them.

False Advertising Under GBL § 350- Tenth Cause of Action

Finally, plaintiff asserts claims for false advertising within the meaning of GBL § 350, claiming that Sponsors' omissions and statements in various marketing materials constitute false advertising. Although defendants Penmark, Core, and Reich Defendants are named in the caption, plaintiff's allegations describe no actions taken by them.

A number of defendants have moved to dismiss the complaint and various cross-claims ^[FN3] against them. The following defendants move to dismiss pursuant to CPLR 3211(a)(1) or (a)(7): Penmark, Scarano, Seta, and Ryder. Defendants Cucich and AE Design move to dismiss pursuant to CLR 3212. Although Schwartz and the Sharon defendants characterize their motions as brought pursuant to 3211, the Court notes that they have answered and issue is joined, so the motions are regarded as brought under CPLR 3212. At oral argument on June 12, 2013, the defendants adopted the arguments made by all other defendants. Their motions will be addressed in turn.

Upon motion for summary judgment, pursuant to CPLR 3212, the moving party bears the initial burden to produce affidavits and documentary evidence sufficient to "warrant the court as a matter of law in directing judgment in [its] favor" (CPLR 3212(b); see Friend of Animals, Inc. v Assoc. Fur Mfrs., Inc., 46 NY2d 1065, 1078 [1979]). Once the movant establishes prima facie entitlement to judgment, the burden shifts to the opposing parties to "demonstrate by admissible [*7]evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). While "all facts must be viewed in the light most favorable to the non-moving party"' (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]), mere conclusory allegations or defense are insufficient to preclude summary judgment (see Zuckerman, 49 NY2d at 562).

Paragraph (g) of the Offering Plan reads, in part:

At the First Closing, Sponsor will deliver, assign or otherwise grant to the Condominium board, on behalf of all Unit Owners, the right to proceed under any assignable warranties and other undertakings received by Sponsor from contractors, suppliers, or others in connection with the construction and equipping of the Building . . .

Paragraph (p) of the Plan further references the assignment of warranties, in stating:

Except for those warranties or guarantees provided to Sponsor by contractors, manufacturers or suppliers, which Sponsor will assign to the Condominium Board and/or Unit Owners, as necessary, Sponsor does not make any warranty of any kind, express or implied . . . In Kikirov, this Court declined to dismiss claims for breach of contract against the general contractors of a project because a provision in the Offering Plan stated that the sponsor "will deliver . . . on behalf of Unit Owners an assignment of all assignable warranties and other undertakings received by the Sponsor from contractors, materialmen or others in connection with the construction and equipping of the Building" (Kikirov, at *11). Although the plaintiff had not explicitly alleged that such assignments had occurred, this Court determined that further discovery was required to determine whether any such assignments existed.

While the language in the Offering Plan is similar to the provision in Kikirov, the documentary evidence precludes a finding that Scarano and Sponsors intended to benefit plaintiff. Sponsors, in opposition to Scarano's motion to dismiss all cross-claims against it, submits a complete copy of its agreement with Scarano. At section 1.3.7.5, the agreement [*11]expressly states that "[n]othing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect." Thus, the documentary evidence conclusively shows that plaintiff was not an intended third party beneficiary, as the contract explicitly states that the parties did not intend to create a benefit for third parties (see Edward B. Fitzpatrick, Jr. Contr. Corp. v County of Suffolk, 138 AD2d 446, 450 [2d Dept 1988])("Where a provision in the contract expressly negates enforcement by third parties, that provision is controlling."). Accordingly, plaintiff's first cause of action against Scarano is dismissed.

Breach of Express Warranty

Plaintiff brings a separate cause of action for breach of express warranty, alleging that Scarano and all other defendants expressly warranted that "the quality of their services and/or work would be first-class and performed in a professional manner consistent with the local prevailing standards of architecture . . . and would be in compliance with the Plans and Specifications and applicable Building Codes of the City of New York . . . and their services would be free of deficiencies and defects." Plaintiffs claim that these warranties were extended to the Sponsor and then assigned to plaintiff, the intended beneficiary of the warranties.

It is well established that "[n]o warranty attaches to the performance of a service. If the service is performed negligently, the cause of action accruing is for that of negligence. Likewise, if it constitutes a breach of contract, the action is for that breach" (Town of Poughkeepsie v Espie, 41 AD3d 701, 706 [2d Dept 2007] citing Aegis Prods. v Arriflex Corp. of Am., 25 AD2d 639, 639 [3d Dept 1966] see also Milau Assoc. v North Ave. Dev. Corp., 42 NY2d 482, 488 [1977]; Mallards Dairy, LLC v E & M Engineers & Surveyors, P.C., 71 AD3d 1415, 1417 [4th Dept 2010] (because contract was for services, cause of action for breach of warranty could not lie). Here, the warranty plaintiff claims was breached is a contractual promise to perform services in a certain manner, which forms the basis for plaintiff's first cause of action for breach of contract. Accordingly, plaintiff's second cause of action is dismissed as to Scarano.

Negligence

Plaintiff also asserts a claim for negligence against all defendants. Plaintiff claims that defendants, including Scarano, had a duty to the Building owners to perform work consistent with local standards and in accordance with the Plans and Specifications, which it breached when it negligently designed the Building. As a result, plaintiff contends, it must spend large sums of money to cure the defects caused by defendant's negligence.

The essence of plaintiff's claim is for breach of contract, not tort, as plaintiff fails to allege that defendants breached a duty other than to build the Building in the manner they promised (see Merritt v Hooshang Constr., 216 AD2d 542, 543 [2d Dept 1995](allegations that builder negligently constructed house sounded in contract, not tort). "[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract has been violated . . . This legal duty must spring from circumstances extraneous to, and not constituting elements of the contract, although it may be connected therewith and dependent upon the contract" (Board of Mgrs. of Riverview at Coll. Point Condominium III v Schorr Brothers Development Corp., 182 A2d 664, 666 [2d Dept 1992] citing Clarke-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]). No independent legal duty to plaintiff has been alleged.

Moreover, the harm plaintiff complains of —the cost of repair— is economic loss, for which there is no recovery in negligence (see Key Intl. Mfg. v Morse/Diesel, Inc., 142 AD2d 448, [*12]450-52 [2d Dept 1988] (Supreme Court properly dismissed construction project owner's claim for economic loss caused by negligence of an architect or engineer with whom it was not in privity of contract); Lake Placid Club Attached Lodges v Elizabethtown Bldrs., 131 AD2d 159, 162 [3d Dept 1987]).

As the complaint fails to state a cause of action for negligence, plaintiff's fourth cause of action is dismissed as to Scarano.

Strict Liability

Plaintiff alleges that, because the building defects have resulted in violations of various NYC building codes, specifically Building Code § 27-334, which is violated by the design of the terrace railings, defendants, including Scarano, should be held strictly liable.

A cause of action for strict liability seeks to provide a remedy for an individual injured because of another's violation of an obligation imposed, not by contract, but by law. "It does not attempt to afford the injured party the benefit of any bargain but rather endeavors to place him in the position he occupied prior to the injury" (Steckmar Nat. Realty and Inv. Corp., Ltd., v J.I. Case Co., 99 Misc 2d 212, 214 [Sup Ct, NY County 1979]). The crux of plaintiff's complaint is that Scarano's plans caused the building to be defectively constructed so as to violate various codes, requiring plaintiff to expend large sums to rectify. Plaintiff has not alleged that it has suffered any physical injury resulting from the alleged violations. The economic loss plaintiff complains of is "not the character of harm contemplated by the rule which renders a manufacturer liable for negligence or strict products liability"' (Hole v General Motors Corp., 83 AD2d 715, 717 [3d Dept 1981] quoting Steckmar, 99 Misc 2d at 214; see also Key Intl., 142 AD2d at 450-52).

Moreover, plaintiff fails to allege that the building codes are the types of statutes that establish a specific standard of care and that plaintiff falls within the class of people intended to be benefited by such statutes (see Zupnick v Certified Lbr Corp., 17 Misc 3d 1122(A) [Sup Ct, Kings County 2007]). Accordingly, plaintiffs' cause of action for strict liability against Scarano is dismissed.

Professional Malpractice

Plaintiff also asserts a cause of action for professional malpractice, alleging that Scarano breached its duty to design the building "in a competent and workmanlike manner in accordance with the Plans and Specifications and in accordance with normal industry standards for construction, architecture, and engineering" (Compl. ¶ 362). In claims against professionals, "[a] legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship"(17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 83 [1st Dept 1999]). Here, however, the documentary evidence establishes that plaintiff had no contractual relationship with Scarano, nor any relationship approaching privity. Accordingly, plaintiff's malpractice claim is dismissed (see 905 5th Associates, Inc. v Weintraub, 85 AD3d 667, 668 (1st Dept 2011])(malpractice claim dismissed when plaintiff had not established a relationship approaching privity with architect who provided services for neighbor's construction).

[*13]Negligent Misrepresentation

Plaintiff also asserts a claim for negligent misrepresentation against Scarano, alleging that Scarano made representations about the quality of the construction that it should have known were false, when it knew the representations would be incorporated into the Offering Plan and relied upon by prospective purchasers.

"[A] private litigant may not pursue a common-law cause of action where the claim is predicated solely on a violation of the Martin Act or its implementing regulations and would not exist but for the statute" (Assured Guar. (UK) Ltd. v J.P. Morgan Inv. Mgt. Inc.,18 NY3d 341, 353 [2011]). However, an independent common-law claim is not preempted by the Martin Act when it is not entirely dependent on the Martin Act for its viability (see id.; see also Caboara v Babylon Cove Dev., LLC, 82 AD3d 1141, 1142 [2d Dept 2011])(defendants not entitled to judgment as a matter of law dismissing the complaint because they failed to establish that plaintiffs' claims rested "entirely on alleged omissions from filings required by the Martin Act and the [AG's] implementing regulations").

Here, plaintiff complains of omissions and misrepresentations made by Scarano in the Offering Plan. As these documents were filed in accordance with the Martin Act, claims of misrepresentations based upon such documents are preempted by the Martin Act. Accordingly, plaintiff's eighth cause of action against Scarano for negligent misrepresentation is dismissed.

The documentary evidence establishes that Cucich was not in privity with plaintiff. Despite plaintiff's argument, in opposition, that Cucich knew and intended plaintiff to benefit from its contract with Sponsors, as evidenced by the provision assigning warranties in the Offering Plan, plaintiff produces no evidence in support of its position and identifies no warranties made by Cucich. As plaintiff has not submitted evidence demonstrating the existence [*14]of a factual issue requiring trial of this claim, Cucich's motion for summary judgment is granted with respect to the breach of contract claim (see Board of Mgrs. of Riverview at Coll. Point Condominium III v Schorr Brothers Development Corp., 182 Ad2d 664, 665 [2d Dept 1992])(summary judgment properly granted when plaintiff board failed to demonstrate triable issues of fact as to whether it was a third-party beneficiary of contract between project owner and contractor).^[FN6]

Breach of express warranty, negligence, and strict liability

For the reasons discussed above with respect to the Scarano motion, plaintiff's claims for breach of express warranty, negligence, and strict liability are dismissed as to Cucich.

Professional Malpractice

Plaintiff cause of action for professional malpractice alleges that Cucich breached its duty of care to ensure that the Building was designed and constructed in accordance with the Plans and Specifications and normal industry standards.

"An action for professional malpractice may lie in the context of a contractual relationship if the professional negligently discharged the duties arising from that relationship" (17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 83 [1st Dept 1999]). Here, however, the evidence establishes that plaintiff had no contractual relationship with Cucich, nor any relationship approaching privity. Accordingly, plaintiff's malpractice claim is dismissed (see 905 5th Associates, Inc. v Weintraub, 85 AD3d 667, 668 (1st Dept 2011])(malpractice claim dismissed when plaintiff had not established a relationship approaching privity with architect who provided services for neighbor's construction).

Negligent Misrepresentation

In its complaint, plaintiff alleges that Cucich negligently misrepresented in the architect's certification and in the various amendments to the Offering Plan that the Building was built in accordance with the Offering Plan and in compliance with relevant city codes. The Cucich Defendants argue that the Martin Act preempts plaintiff's claims, as they arise solely out of the certification Cucich submitted pursuant to the Martin Act.

"[A] private litigant may not pursue a common-law cause of action where the claim is predicated solely on a violation of the Martin Act or its implementing regulations and would not exist but for the statute" (Assured Guar. (UK) Ltd. v J.P. Morgan Inv. Mgt. Inc.,18 NY3d 341, 353 [2011]). However, an independent common-law claim is not preempted by the Martin Act when it is not entirely dependent on the Martin Act for its viability (see id.; see also Caboara v Babylon Cove Dev., LLC, 82 AD3d 1141, 1142 [2d Dept 2011])(defendants not entitled to judgment as a matter of law dismissing the complaint because they failed to establish that plaintiffs' claims rested "entirely on alleged omissions from filings required by the Martin Act and the [AG's] implementing regulations").

In opposition, plaintiff argues that because the alleged misrepresentations stemmed, not [*15]only from the certificate in the Offering Plan, but from subsequent amendments of the Offering Plan, such claims have an independent basis and are not preempted by the Martin Act. Plaintiff argues that the Cucich Defendants made material misrepresentations by stating in each of the eleven amendments to the Offering Plan that there were "no material changes," thus misrepresenting that the Building was built in accordance with the Offering Plan.

Plaintiff's argument is unavailing. The disclosure regulations adopted by the AG specify, at 13 NYCRR 20.5[a][2], that "[a]n amendment must include a representation that all material changes of facts of circumstances affecting the property or the offering are included unless the changes were described in prior amendment(s) submitted to but not yet filed with the Department of Law." In Kerusa Co. LLC v W10Z/515 Real Estate Limited Partnership (12 NY3d 236 [2009]), a case involving similar facts, the plaintiff's allegations that defendants did not disclose various construction and design defects in the offering plan amendments but instead represented that there were no material changes when there were, in fact, problems arising during construction, were deemed preempted by the Martin Act. The Court of Appeals reasoned that "[b]ut for the Martin Act and the [AG's] implementing regulations . . . the sponsor defendants did not have to make the disclosures in the amendments. Thus, to accept [plaintiff's] pleading as valid would invite a backdoor private cause of action to enforce the Martin Act . . ." (id. at 245).

Here, plaintiff complains of omissions in the Offering Plans and subsequent amendments. As these documents were filed in accordance with the Martin Act, claims of misrepresentations based upon such omissions are preempted by the Martin Act and dismissed.

In its opposition, plaintiff also raises, for the first time, allegations that Cucich made material misrepresentations in filings with the DOB, upon which plaintiff relied to its detriment. In support of its position, plaintiff includes an affidavit from Chad Gessin, president of the Board, reciting the various defects with the Building and stating that, prior to purchasing a unit in the Building, he and other resident owners researched the Offering Plan, marketing materials, and Building Department records to decide whether to purchase in the Building and concluding that Cucich was responsible for filing an architect certificate and plans with the Department of Buildings.

"A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144 [2007]). "A relationship approaching privity requires that (1) defendant have an awareness that his or her statement is for a particular purpose; (2) a known party relies on the statement in furtherance of that purpose; and (3) there is some conduct linking defendant to the relying party and evincing its understanding of that reliance" (Sykes v RFD Third Avenue 1 Associates, LLC, 67 AD3d 162, 167 [1st Dept 2009] aff'd 15 NY3d 370, 373 [2010]).

Here, plaintiff fails to support, or even allege, facts that would establish that Cucich was aware or intended that filings with the DOB would be relied upon by plaintiff, or that Cucich evinced an understanding of plaintiff's purported reliance. Plaintiff's contention that plaintiff was a "known" party to Cucich because 37% of the Building had been sold when Cucich continued to make filings with the DOB is unavailing (see Ford v Sivilli, 2 AD3d 773, 774 [2d Dept 2003](future purchaser of building who brought claim of negligent misrepresentation against architect based on filings with town building department not a known party but, rather, "[a]t best [*16]. . . part of an indeterminate class of persons who, presently or in the future' may rely upon [the] alleged misrepresentations")(citations omitted).

For the foregoing reasons, Cucich's motion to dismiss is granted with respect to plaintiff's negligent misrepresentation claim.

Breach of express warranty, negligence, and strict liability

For the reasons previously discussed, plaintiff's claims for breach of express warranty, negligence, and strict liability are dismissed as to Seta Defendants.

Professional malpractice

In the absence of allegations showing a relationship approaching privity, plaintiff's malpractice claim is dismissed (see 905 5th Associates, Inc., 85 AD3d at 668).

Negligent misrepresentation

For the reasons set forth in the Scarano motion discussion, plaintiff's claim for negligent [*17]misrepresentation is dismissed as to Seta.

On March 18, 2004, Sharon entered into an agreement with Scarano to provide structural and mechanical engineering services for the Project, whereby it was to, among other responsibilities, inspect the site and observe conditions, review architectural plans, perform structural analysis and determine the basic framing system, prepare plumbing and sprinkler plans, and assist in obtaining DOB approval. Then, on April 19, 2010, Sharon entered into an agreement with Savanna Partners, one of the Sponsors, to provide structural engineering services, including "[e]ngineering design of Structural systems for the wall repairs, temporary shoring and excavation protection." Sharon also entered into an agreement directly with plaintiff, but not until March 8, 2012, months after the alleged construction defects were discovered.

Plaintiff asserts claims for breach of contract, breach of express warranty, negligence, professional malpractice, and negligent misrepresentation against the Sharon defendants, alleging that Sharon agreed to provide services in a first-class manner, but failed to do so, which resulted in the alleged defects in the Building. Sharon Defendants move to dismiss the Complaint. Although Sharon Defendants characterize their motion as brought pursuant to 3211, the Court notes that they have answered and issue is joined, so the motion is treated as brought pursuant to CPLR 3212.

Breach of contract

Sharon argues that the breach of contract claim must be dismissed against it, as it was not in privity with plaintiff and assigned no warranties to plaintiff. In support of its motion, Sharon submits an affidavit from its president, Ronen Sharon, stating that its agreements were only with Scarano and Sponsors, respectively, and Sharon did not intend to benefit any third parties, such as plaintiff. Plaintiff claims that it was in privity with Sharon because it was an intended third party beneficiary of its agreement with Sponsors, as evidenced by the purported assignment of warranties. However, the documentary evidence, the two agreements submitted by both plaintiff and Sharon, reveals no warranties made by Sharon, and plaintiff has not identified any such warranties or produced evidence that they were assigned to it. As it fails to raise an issue of fact requiring resolution at trial, plaintiff's breach of contract claim is dismissed with respect to Sharon (see Board of Mgrs. of Riverview at Coll. Point Condominium III v Schorr Brothers Development Corp., 182 Ad2d 664, 665 [2d Dept 1992]). [*19]

Breach of express warranty & negligence

For the reasons discussed above with respect to the Scarano motion, the claims for breach of express warranty and negligence are dismissed as to Sharon.

Professional malpractice

In the absence of evidence suggesting a relationship approaching privity, plaintiff's malpractice claim is dismissed (see 905 5th Associates, Inc., 85 AD3d at 668).

Negligent misrepresentation

Plaintiff's claim that Sharon made negligent misrepresentations in the plans and drawings it drew up to be used in the Offering Plan is dismissed for the reasons discussed in the Scarano motion above.

On June 4, 2004, AE Design was retained by Sponsors' predecessor to provide concept drawings for the Project. Subsequently, on March 8, 2007, AE Design entered into an amended agreement with Sponsors. Pursuant to the agreement with Sponsor, AE Design was to provide interior design drawings, with "all drawings prepared by [AE Design] [to] be reviewed and approved by the Project's architect and/or expeditor to ensure code compliance and public safety issues including but not limited to ADA compliance." The Offering Plan refers to AE Design as a "Design Architect."

Plaintiff asserts claims for breach of contract, breach of express warranty, negligence, professional malpractice, and negligent misrepresentation against AE Design. AE Design moves pursuant to 3212 for summary judgment dismissing the complaint and any cross-claims against it.

Breach of contract

AE Design argues that the breach of contract claim must be dismissed against it, as it was not in privity with plaintiff and assigned no warranties to plaintiff. In support of its motion, AE Design provides an affidavit from AE Design's principal, Andreas Escobar, stating that it entered into an agreement with Kay, Sponsor's predecessor, then it entered into an amended agreement with Sponsors when they took over the Project. A review of the agreements, provided by both plaintiff and AE Design, reveals that they contain no warranties made by AE Design. Plaintiff fails to produce any evidence suggesting that AE Design made warranties to Sponsors and that such warranties were subsequently assigned to plaintiff. As plaintiff has failed to demonstrate the existence of a factual dispute requiring resolution at trial, AE Design's motion for summary judgment is granted with respect to the breach of contract claim (see Board of Mgrs. of Riverview at Coll. Point Condominium III v Schorr Brothers Development Corp., 182 Ad2d 664, 665 [2d Dept 1992])(summary judgment properly granted when plaintiff board failed to demonstrate triable issues of fact as to whether it was a third-party beneficiary of contract between project owner and contractor).

Breach of express warranty & negligence

For the reasons discussed above with respect to the Scarano motion, plaintiff's claim for breach of express warranty and negligence are dismissed

Professional malpractice

In the absence of evidence suggesting a relationship approaching privity, plaintiff's malpractice claim is dismissed (see 905 5th Associates, Inc., 85 AD3d at 668).

Negligent misrepresentation

Plaintiff argues that AE Design created drawings to be reviewed by the Project's [*20]architects, which it knew would be relied upon by plaintiff, the ultimate consumer. For the reasons set forth in the Cucich motion discussion, plaintiff's claim for negligent misrepresentation is dismissed as to AE Design as plaintiff fails to produce evidence or even allege facts establishing that AE Design knew and intended plaintiff to reply upon the purported misrepresentations.

Plaintiff complains of various defects, ranging from problems with the Building's foundation, leaking from ceilings, noxious odors, and improperly designed terrace railings. All moving defendants were involved in the construction or design of the Building, except for Penmark and AE Design, which have established through documentary evidence that they were merely the managing agent and interior design consultant, respectively. Many issues of fact have been raised by the moving defendants as to the cause of the alleged defects and the potential liability of co-defendants to each other under theories of indemnification or contribution. A determination of the merits of these claims requires further factual development. Accordingly, all cross claims against moving defendants which have been dismissed from this case as a result of this decision, are dismissed without prejudice to the right of an aggrieved co-defendant to commence a third party action within 30 days.

As all of plaintiff's claims are dismissed as to Penmark, the complaint against Penmark is dismissed with leave to plaintiff to replead with respect to any viable contract causes of action related to the Management Agreement.

As all of plaintiff's claims against Scarano Defendants are dismissed, the complaint is dismissed as to Scarano Defendants.

As all of plaintiff's claims against Cucich Defendants are dismissed, the complaint is dismissed as to Cucich Defendants.

As all of plaintiff's claims against Seta Defendants are dismissed, the complaint is dismissed as to Seta Defendants.

As all of plaintiff's claims are dismissed as to Simon Schwartz, individually, the complaint is dismissed only as to Simon Schwartz, individually, without prejudice to his litigating his cross and counterclaims against the remaining parties.

As all of plaintiff's claims are dismissed as to Jaccarino, the complaint is dismissed as to Jaccarino, individually.

As all of plaintiff's claims against Sharon Defendants are dismissed, the complaint is dismissed as to Sharon Defendants.

As all of plaintiff's claims against AE Design are dismissed, the complaint is dismissed as to AE Design.

All cross claims against the moving defendants are dismissed without prejudice to an aggrieved defendant bringing a third party action against a co-defendant who has been dismissed from this case as a result of this decision.

This constitutes the decision and order of the Court.

E N T E R:

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