| Board of Mgrs. of 136 St. Marks Place Condominium v St.Marks Place Condominiums, II, LLC |
| 2015 NY Slip Op 04267 [128 AD3d 877] |
| May 20, 2015 |
| Appellate Division, Second Department |
[*1]
| Board of Managers of 136 St. Marks PlaceCondominium, Respondent, v St. Marks Place Condominiums, II, LLC, et al.,Defendants, and Builders Bank, Appellant. |
Richard D. Grossman, Garden City, N.Y., for appellant.
Law Office of Allison M. Furman, P.C., New York, N.Y., for respondent.
In an action, inter alia, to recover damages for negligent construction and fordeclaratory relief, the defendant Builders Bank appeals from an order of the SupremeCourt, Kings County (Knipel, J.), dated March 5, 2014, which denied its motion pursuantto CPLR 3211 (a) (7) to dismiss the seventh and eighth causes of action.
Ordered that the order is affirmed, with costs.
The plaintiff is the board of managers of a condominium building in Brooklyn. Atsome point between 2008 and 2010, during the construction process to convert thebuilding into condominium use, the sponsor defaulted on the loans which it had securedfor that purpose from the defendant Builders Bank (hereinafter the Bank). Pursuant to adefault remedy set forth in the loan documents, the sponsor surrendered the building tothe Bank. Thereafter, the Bank undertook to finish construction of the units and commonareas.
In September 2013, the plaintiff commenced this action against the sponsor, themanaging agent of the sponsor, and the Bank. The complaint alleged, inter alia, that thebuilding "suffers substantial construction defects, missing and defective products andmaterials" and has conditions that "imminently threaten the health and safety of the UnitsOwners and general public." The complaint contained nine causes of action, but only theseventh and eighth causes of action were asserted against the Bank. The seventh cause ofaction alleged, inter alia, that the Bank "was careless and negligent in constructing,supervising construction and management of" the building. The eighth cause of actionalleged, inter alia, that the Bank was on notice of the building's defective conditions, andthat it "began to undertake measures to repair the conditions . . . but failedto complete the repairs." The eighth cause of action sought a declaration that the Bank "isobligated to finish repairing the conditions in the [b]uilding . . . at its solecost and expense." The Supreme Court denied the Bank's pre-answer motion pursuant toCPLR 3211 (a) (7) to dismiss both of these causes of action. We affirm.
"In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), thecourt must 'accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every [*2]possible favorable inference, anddetermine only whether the facts as alleged fit within any cognizable legaltheory' " (SierraHoldings, LLC v Phillips, Weiner, Quinn, Artura & Cox, 112 AD3d 909,910 [2013], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Benishai v Epstein, 116AD3d 726, 727-728 [2014]). Under the circumstances of this case, the allegations inthe seventh cause of action, that the Bank failed to exercise reasonable care when itcompleted construction of the building and, in effect, "launche[d] a force or instrumentof harm," which caused damage to the plaintiff, states a viable cause of action soundingin negligence against the Bank (Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, 6 [2013][internal quotation marks omitted]; see Espinal v Melville Snow Contrs., 98NY2d 136, 140 [2002]; see also Regatta Condominium Assn. v Village ofMamaroneck, 303 AD2d 739, 740 [2003]; Lake Placid Club Attached Lodges vElizabethtown Bldrs., 131 AD2d 159 [1987]). Accordingly, the Supreme Courtproperly denied that branch of the Bank's motion pursuant to CPLR 3211 (a) (7) whichwas to dismiss the seventh cause of action.
With respect to the eighth cause of action, "[a] motion to dismiss a declaratoryjudgment action prior to the service of an answer presents for consideration only theissue of whether a cause of action for declaratory relief is set forth" (Staver Co. vSkrobisch, 144 AD2d 449, 450 [1988] [emphasis added]; see Matter of Tilcon N.Y., Inc. vTown of Poughkeepsie, 87 AD3d 1148, 1150 [2011]). "[W]here a cause ofaction is sufficient to invoke the court's power to 'render a declaratory judgment. . . as to the rights and other legal relations of the parties to a justiciablecontroversy' (CPLR 3001; see CPLR 3017 [b]), a motion to dismiss that cause ofaction should be denied" (Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie,87 AD3d at 1150). Here, contrary to Bank's contention, the allegations in the complaintadequately asserted a cause of action for declaratory relief. Accordingly, the SupremeCourt properly denied that branch of the Bank's motion pursuant to CPLR 3211 (a) (7)which was to dismiss the eighth cause of action. Balkin, J.P., Roman, Sgroi and LaSalle,JJ., concur.