| Board of Mgrs. of the 432 Park Condominium v 56th & Park (NY) Owner, LLC |
| 2024 NY Slip Op 02865 [227 AD3d 565] |
| May 23, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Board of Managers of the 432 Park Condominium, on
Behalf of the Individual Unit Owners and the Commercial Unit Owners, et al.,
Plaintiffs, v 56th and Park (NY) Owner, LLC, Appellant/Third-Party Plaintiff-Appellant, et al., Defendants. WSP USA Buildings, Inc., Formerly Known as WSP Flack + Kurtz, Inc., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. |
Troutman Pepper Hamilton Sanders LLP, New York (Kevin P. Wallace of counsel), and Kramer Lavin Naftalis & Frankel LLP, New York (Ronald S. Greenberg of counsel), for appellant.
Zetlin & De Chiara, LLP, New York (Jaimee L. Nardiello of counsel), for respondents.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered June 6, 2023, which, insofar as appealed from, granted the motion of third-party defendants WSP USA Buildings, Inc., formerly known as Flack + Kurtz, Inc., and WSP USA Buildings, Inc., formerly known as WSP Cantor Seinuk Structural Engineers' (collectively, WSP defendants), to dismiss the third-party common-law indemnification claims as against them, unanimously affirmed, with costs.
The court properly dismissed the third-party common-law indemnification claims as against WSP defendants. Plaintiffs sought recovery from defendants/third-party plaintiff 56th and Park (NY) Owner, LLC (Owner) because of Owner's alleged wrongdoing in failing to uphold its contractual obligations under the condominium's offering plan and the purchase agreements, which according to plaintiff, resulted in the construction and design defects of the condominium building. Thus plaintiffs' claim was not based on negligence by WSP defendants (see e.g. Chatham Towers, Inc. v Castle Restoration & Constr., Inc., 151 AD3d 419, 420 [1st Dept 2017]). Moreover, while plaintiffs alleged that Owner did not properly supervise and control the construction and design work, Owner did not, in the third-party complaint against WSP defendants, sufficiently allege that it fully delegated its duties to WSP defendants. Rather, it retained certain responsibilities with regard to the performance of services by WSP defendants, as demonstrated by the terms of the engineering services contracts with WSP defendants (see Residential Bd. of Mgrs. of 310 W. 52nd St. Condominium v El-Ad 52 LLC, 140 AD3d 536, 537-538 [1st Dept 2016]; see also Board of Mgrs. of Olive Park Condominium v Maspeth Props., LLC, 170 AD3d 645, 647 [2d Dept 2019]). Concur—Webber, J.P., Gesmer, González, Scarpulla, Shulman, JJ.