| Bri-Den Constr. Co., Inc. v Kapell & Kostow Architects, P.C. |
| 2008 NY Slip Op 09181 [56 AD3d 355] |
| November 20, 2008 |
| Appellate Division, First Department |
| Bri-Den Construction Co., Inc., Appellant, v Kapell &Kostow Architects, P.C., et al., Respondents. |
—[*1] Wasserman Grubin & Rogers, LLP, New York (Richard Wasserman of counsel), forrespondents.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered September 12,2007, which granted defendants' motion to dismiss the complaint, unanimously affirmed, withcosts.
There is admittedly no contractual privity between the parties, and the court properly foundthat plaintiff contractor failed to state a cause of action under any of the theories set forth in thecomplaint because it failed to demonstrate the "functional equivalent of contractual privity"under the three prong test set forth in Ossining Union Free School Dist. v Anderson LaRoccaAnderson (73 NY2d 417, 419 [1989]). In Ossining the Court of Appeals rejected theargument that reliance on plans and specifications included in the bid package constituted thefunctional equivalent of privity, holding that any asserted reliance must be by a known party andnot a class of potential parties, such as future bidders. Even were we to find that a classcomposed of prequalified bidders was sufficiently known for purposes of Ossining, theprequalified bidders were simply not "known" at the time of the complained-of conduct.
Because the complaint was properly dismissed for these reasons, we need not address thestatute of limitations issue. Concur—Tom, J.P., Saxe, Sweeny, Catterson and DeGrasse,JJ.