| Kerusa Co. LLC v W10Z/515 Real Estate Ltd. Partnership |
| 2008 NY Slip Op 03687 [50 AD3d 503] |
| April 24, 2008 |
| Appellate Division, First Department |
| Kerusa Co. LLC, Appellant, v W10Z/515 Real EstateLimited Partnership et al., Respondents. |
—[*1] Landman Corsi Ballaine & Ford P.C., New York (William G. Ballaine of counsel), forW10Z/515 Real Estate Limited Partnership and Zeckendorf, respondents. Cozen O'Connor, New York (Kevin G. Mescall of counsel), for J.A. Jones ConstructionGroup, LLC, respondent. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Richard E. Lerner ofcounsel), for Jaros, Baum & Bolles Consulting Engineers, respondent. Milber, Makris, Plousadis & Seiden, LLP, White Plains (Christopher A. Albanese ofcounsel), for Frank Williams & Associates, P.C., respondent. Gogick, Byrne & O'Neill, LLP, New York (Kevin J. McGrath of counsel), for The CantorSeinuk Group, P.C., respondent.
Orders, Supreme Court, New York County (Jane S. Solomon, J.), entered January 11, 2007,which, in this action alleging breach of contract and negligence in the construction, marketingand sale of luxury condominium units, granted defendants' motions for summary judgmentdismissing the complaint, unanimously affirmed, with costs.
Plaintiff has standing to seek relief for damage and defects to its own units only and not forinjury to the common elements of the subject building (see Caprer v Nussbaum, 36 AD3d 176, 183-186 [2006]; Devlinv 645 First Ave. Manhattan Co., 229 AD2d 343, 343 [1996]; Residential Bd. of Mgrs. ofZeckendorf Towers v Union Sq.-14th St. Assoc., 190 AD2d 636, 637 [1993]; seealso Real Property Law § 339-dd). Notwithstanding its complaints of mold in itspenthouse apartment, the only evidence thereof was plaintiff's expert's statement that mold wasfound there by his company in sample testing performed on a single day in late December 2002.The expert did not adopt the opinion of the company's draft report that these test results indicateda potential health hazard for individuals with compromised immune systems or sensitivity to[*2]mold. Moreover, the unrebutted evidence indicated that allenvironmental inspections and tests performed in the penthouse unit after December 30, 2002found acceptable levels of mold.
In any event, plaintiff fails, as a matter of law, to demonstrate any injury for which it isentitled to hold defendant sponsors liable. Although the purchase agreement obligated defendantsponsors to provide plaintiff with a building and unit constructed "in a good and workman-likemanner," the purchase agreement, through its incorporation of the terms of the offering plan,limited plaintiff's remedy for any breach of this obligation to the right to require the sponsors to"repair or replace any defective item of construction." The latter provision necessarily excludesfrom recoverable damages any diminution in the value of the unit that may result from defectiveconstruction. Plaintiff does not allege that it has incurred any expense to repair or replace anydefects in the construction of its unit, and, having now sold the unit, it has no further interest inthe repair or replacement of any such defects.
Nor does the record evidence any viable cause of action by plaintiff against any of thedefendants other than the sponsors. Since plaintiff had no contractual or other relationship withthe general contractor, architect, mechanical engineer or structural engineer on the project and is,at best, only an incidental, rather than an intended, beneficiary of the contracts that defendantsJ.A. Jones Construction Group, Frank Williams & Associates, Jaros, Baum & Bolles, and theCantor Seinuk Group entered into with the sponsors, plaintiff may not recover for negligence orbreach of contract from these defendants either (see Zeckendorf Towers, 190 AD2d at637). Concur—Lippman, P.J., Friedman, Sweeny and Moskowitz, JJ.