| 20 Pine St. Homeowners Assn. v 20 Pine St. LLC |
| 2013 NY Slip Op 05962 [109 AD3d 733] |
| September 24, 2013 |
| Appellate Division, First Department |
| 20 Pine Street Homeowners Association et al.,Appellants, v 20 Pine Street LLC et al., Respondents, et al.,Defendants. |
—[*1] Goulston & Storrs, P.C., New York (Jonathan A. Grippo of counsel), forrespondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered May 16, 2012,which, insofar as appealed from as limited by the briefs, granted, pursuant to CPLR 3211(c), summary judgment dismissing the first and seventh causes of action for breach ofcontract against defendants-respondents Jeshayau Boymelgreen also known as ShayaBoymelgreen, Pinchas Cohen, Richard Marin, Tamir Kazaz, 20 Pine Street Managers,LLC, and AI Properties and Developments (USA) Corp., Africa Israel InvestmentsInternational 1997 Limited, and Africa Israel Investments Limited (Sponsor's Principals),the fifth, sixth, thirteenth and seventeenth causes of action against defendant-respondent20 Pine Street LLC (Sponsor) and Sponsor's Principals, and the nineteenth cause ofaction against defendants-respondents Richard Marin, Jim Pershing, Ari Schwebel, AndyAshwal, Gennyene Brugger, Damien Stein, Andrew Faulds, Gabe Rubin, Rena Batash,Getzy Felig, Paz Kaspi, Lori Levine, Gal Back, Liron Hen-Brenner, Jack Jemal, JosephDamanti and Adam Bienelpe (board members), unanimously modified, on the law, todelete the provision converting defendants' CPLR 3211 (a) motions to dismiss intoCPLR 3211 (c) motions for summary judgment, and to substitute for the provisiongranting summary judgment a provision granting the motions pursuant to CPLR 3211(a), and otherwise affirmed, without costs.
The trial court's "interim order," which notified the parties that the court "may treatall pending motions to dismiss as motions for summary judgment conversion pendingconsideration of support or opposition by the parties" and invited the parties to submitpapers "in support or opposition," did not provide adequate notice to the parties of thecourt's intention to convert the motions pursuant to CPLR 3211 (c). Given this, as well asthe fact that none of the exceptions to the notice requirement were applicable (seeWiesen v New York Univ., 304 AD2d 459, 460 [1st Dept 2003]), the court erred inconverting the motions into summary judgment motions. Nonetheless, applying thestandards governing a motion to dismiss pursuant to CPLR 3211, dismissal of thechallenged claims was appropriate.[*2]
The court properly dismissed the sixth cause ofaction alleging that Sponsor breached a statutory or common-law implied housingmerchant warranty. In Fumarelli v Marsam Dev. (92 NY2d 298 [1998]), theCourt of Appeals held that the codification of General Business Law article 36-B,pursuant to which a builder-vendor may exclude or modify all express warrantiesprovided that the purchase agreement contains a limited warranty in accordance with theprovisions of General Business Law § 777-b, has superseded the common-lawimplied housing merchant warranty previously recognized in Caceci v Di CanioConstr. Corp. (72 NY2d 52 [1988]). The statutory housing merchant warrantyscheme codified under article 36-B applies only to buildings less than five stories, andnot to the condominium at issue here, and we find that the ruling in Fumarelliabrogates whatever common-law implied housing merchant warranty, if any, that mayhave existed with respect to buildings taller than five stories prior to the statutorycodification.
The court also properly dismissed the fifth cause of action for damages in connectionwith Sponsor's alleged breach of express warranties to correct construction defects, as theoffering plan here included a valid and specific limited warranty in accordance with theprovisions of General Business Law § 777-b, which, as provided in GeneralBusiness Law article 36-B, entitled Sponsor to exclude or modify all express warranties,including the preclusion of any claim for damages based on their breach.
The court properly dismissed the fraud claims here (causes of action 13 and 17)because plaintiffs failed to allege tortious conduct separate and distinct from their breachof contract claim (see 767 ThirdAve. LLC v Greble & Finger, LLP, 8 AD3d 75, 76 [1st Dept 2004];Modell's N.Y. v Noodle Kidoodle, 242 AD2d 248, 249 [1st Dept 1997]; seealso Board of Mgrs. of Riverview at Coll. Point Condominium III v Schorr Bros. Dev.Corp., 182 AD2d 664 [2d Dept 1992]). The negligent misrepresentation claim wasalso properly dismissed given the absence of allegations sufficient to plead a specialrelationship of trust or confidence.
The claims against Sponsor's Principals were properly dismissed. Other thanconclusory statements that Sponsor's Principals dominated and controlled Sponsor andeach other, plaintiffs failed to allege particularized facts to warrant piercing the corporateveil so as to allow the claims against the principals to continue (see Barneli & Cie SA v DutchBook Fund SPC, Ltd, 95 AD3d 736, 737 [1st Dept 2012]; Andejo Corp. v South St. SeaportLtd. Partnership, 40 AD3d 407 [1st Dept 2007]; Albstein v Elany Contr. Corp.,30 AD3d 210 [1st Dept 2006], lv denied 7 NY3d 712 [2006]). In addition,as noted above, the fraud claims were not adequately pled so as to provide a basis to holdthe principals liable.
Finally, the breach of fiduciary duty claim against the individual board members wasproperly dismissed. Contrary to plaintiffs' contention, the complaint does not allege any[*3]individual wrongdoing by the members of the boardseparate and apart from their collective actions taken on behalf of the condominium (see Granirer v Bakery, Inc., 54AD3d 269, 272 [1st Dept 2008]). Concur—Friedman, J.P., Freedman,Richter, Feinman and Gische, JJ. [Prior Case History: 2012 NY Slip Op31302(U).]