| Encore Lake Grove Homeowners Assn., Inc. v Cashin Assoc.,P.C. |
| 2013 NY Slip Op 07932 [111 AD3d 881] |
| November 27, 2013 |
| Appellate Division, Second Department |
| Encore Lake Grove Homeowners Association, Inc., et al.,Appellants-Respondents, v Cashin Associates, P.C.,Respondent-Appellant. |
—[*1] Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (David M. Pollack andKenneth A. Sherman of counsel), for respondent-appellant.
In an action to recover damages for breach of contract and negligence, (1) theplaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Suffolk County (Farneti, J.), dated January 12, 2012, as granted those branches ofthe defendant's motion which were pursuant to CPLR 3211 (a) to dismiss the first andsecond causes of action in the complaint, and (2) the defendant cross-appeals, as limitedby its brief, from so much of the same order as denied that branch of its motion whichwas to dismiss the complaint on the ground that the plaintiffs failed to comply with thenotice of claim requirements of the General Municipal Law.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendant's motion which was to dismiss the first cause ofaction pursuant to CPLR 3211 (a), and substituting therefor a provision denying thatbranch of the motion; as so modified, the order is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
The Incorporated Village of Lake Grove retained the defendant as the VillageEngineer by resolution dated August 1, 2002. The defendant remained Village Engineeruntil February 12, 2008. By resolution dated November 3, 2005, the Village authorizedthe defendant "to perform general building inspections as required by the buildingdepartment for the 'Encore Lake Grove Community,' " which comprised twocondominium communities (hereinafter Encore I and Encore II). The Village issuedcertificates of occupancy for Encore I and Encore II based upon the defendant'sinspections. After the subject condominium homes were purchased, the homeownersallegedly discovered certain construction defects, including the absence of fire walls intwo buildings. Encore I, Encore II, and a joint homeowners' association commenced thisaction against the defendant, alleging, as a third-party beneficiary, breach of the contractbetween the Village and the defendant pursuant to which the defendant performed thesubject inspections, and professional malpractice.
The Supreme Court improperly granted that branch of the defendant's motion whichwas pursuant to CPLR 3211 (a) (1) to dismiss the first cause of action, which allegedbreach of [*2]contract, based upon documentaryevidence. "A motion to dismiss a complaint based upon documentary evidence may beappropriately granted only where the documentary evidence utterly refutes the plaintiff'sfactual allegations, conclusively establishing a defense as a matter of law" (Nunez v Mohamed, 104 AD3d921, 922 [2013]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Cervini v Zanoni, 95 AD3d919, 920-921 [2012]; Rubinstein v Salomon, 46 AD3d 536, 539 [2007]; Shaya B. Pac., LLC v Wilson,Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]). Contraryto the defendant's contention, the documentary evidence in the record does notconclusively establish as a matter of law that the plaintiffs were not third-partybeneficiaries of the resolution dated November 3, 2005. "In determining third-partybeneficiary status it is permissible for the court to look at the surrounding circumstancesas well as the agreement . . . Moreover, it is well settled that the obligationto perform to the third party beneficiary need not be expressly stated in the contract"(Aievoli v Farley, 223 AD2d 613, 614 [1996] [internal quotation marks omitted];see Belgrave Owners v OR Holding Corp., 233 AD2d 352 [1996]). Here, theplaintiffs submitted an affidavit from the Village Attorney attesting that the Villageengaged the defendant to perform the subject inspections for the benefit of the purchasersof the subject condominiums (see All Am. Moving & Stor., Inc. v Andrews, 96 AD3d674, 675 [2012], quoting MK W. St. Co. v Meridien Hotels, 184 AD2d 312,313 [1992] [" 'the intention which controls in determining whether a stranger to acontract qualifies as an intended third-party beneficiary is that of the promisee' "];Board of Mgrs. of Astor Terrace Condominium v Schuman, Lichtenstein, Claman &Efron, 183 AD2d 488 [1992]; cf. Lake Placid Club Attached Lodges vElizabethtown Bldrs., 131 AD2d 159, 161-162 [1987]). Moreover, "the identity of athird-party beneficiary need not be set forth in the contract or, for that matter, even beknown as of the time of its execution" (MK W. St. Co. v Meridien Hotels, 184AD2d at 313; see SaratogaSchenectady Gastroenterology Assoc., P.C. v Bette & Cring, LLC, 83 AD3d1256, 1257 [2011]).
However, the Supreme Court properly granted that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the second cause of action, whichalleged professional malpractice. The plaintiffs asserted in the complaint that thedefendant "negligently performed inspection services relative to the homes in [Encore I]and [Encore II]," in that, inter alia, the defendant "fail[ed] to detect the existence ofdefects in the homes and appurtenant common areas." "[M]erely alleging that a partybreached a contract because it failed to act with due care will not transform a strictbreach of contract claim into a negligence claim" (Verizon N.Y., Inc. v Optical Communications Group, Inc., 91AD3d 176, 180 [2011]; see Sommer v Federal Signal Corp., 79 NY2d 540,551 [1992]). This is because "[o]bligations that flow exclusively from a contract must beenforced as contractual duties under a theory of contract law" (Landon v Kroll Lab. Specialists,Inc., 91 AD3d 79, 82 [2011]). "[A] court enforcing a contractual obligation willordinarily impose a contractual duty only on the promisor in favor of the promisee andany intended third-party beneficiaries" (id. at 82). "Thus 'where a party is merelyseeking to enforce its bargain, a tort claim will not lie' " (id., quoting NewYork Univ. v Continental Ins. Co., 87 NY2d 308, 316 [1995]). Taking into accountthe applicable factors, including "the nature of the injury, the manner in which the injuryoccurred and the resulting harm" (Sommer v Federal Signal Corp., 79 NY2d at552), it is clear that the plaintiffs, as third-party beneficiaries, are seeking enforcement ofthe defendant's promise to properly inspect the construction of the subject homes. Thus,the only claim the plaintiffs have alleged against the defendant is one sounding incontract, and they have failed to state a cause of action sounding in tort. Accordingly, theSupreme Court properly directed dismissal of the second cause of action pursuant toCPLR 3211 (a) (7).
With respect to the cross appeal, the plaintiffs failed to comply with the notice ofclaim requirements of the General Municipal Law. Whether the plaintiffs were mandatedto serve a notice of claim on the Village pursuant to General Municipal Law§§ 50-e and 50-i, as claimed by the defendant, turns on a determination ofwhether the defendant performed the subject inspections in its capacity as VillageEngineer. The plaintiffs contend that the defendant performed the inspections in adifferent capacity, since the defendant was separately engaged, at the request of theplaintiff's sponsor, to perform inspections of the subject homes. In light of the parties'conflicting assertions, and the lack of any evidence in the record regarding the duties ofthe Village Engineer, the record does not contain sufficient information to allow us todetermine whether the defendant performed the subject inspections as part of its role asVillage Engineer. Accordingly, the Supreme Court properly denied that branch of thedefendant's motion which was to dismiss the complaint [*3]on the ground that the plaintiffs failed to comply with thenotice of claim requirements of the General Municipal Law (see International SharedServs. v County of Nassau, 222 AD2d 407 [1995]). Angiolillo, J.P., Dickerson,Austin and Hinds-Radix, JJ., concur. [Prior Case History: 2012 NY Slip Op30174(U).]