Summary Judgment

The sponsor of a condominium complex attempted to hold a subcontractor responsible for various construction defects in 610 West Realty, LLC v. Riverview West Contracting, LLC (N.Y. Sup. Ct. Co. Index No. 15537/2013). The Court, in a decision dated May 24, 2016, upheld the concept of privity in granting the subcontractor’s motion for summary judgment.

The sponsor had hired BFC Construction, which in turn hired A-1 Testing Laboratories Inc., to provide fire proofing inspection for the building. The sponsor alleged that A-1 had failed to detect and report certain defective work performed by another subcontractor and thus was liable to the sponsor in contract and for negligence. The sponsor also made a fraudulent conveyance claim against A-1.

A-1 moved for summary judgment, arguing that it could not be liable for breach of contract to the sponsor because there was no privity between it and the sponsor, and the sponsor was not a third party beneficiary of A-1’s contract with BFC. It also argued that it could not be liable to the sponsor for negligence because the sponsor’s claims were solely founded upon economic loss. Lastly, A-1 alleged that the sponsor’s claims were barred by the statute of limitations.

Can a cooperative apartment owner claim to be “ready, willing and able” to close where the board of directors of the cooperative has threatened to try to reclaim exclusive rights to penthouse terrace access that the buyer bargained for? According to the First Department, the answer may well be “No” in the absence of “unequivocal assurances” from a meddling board.

In Pastor v. DeGaetano, et al., 128 A.D.3d 218 (1^st Dep’t 2015), the defendant, an estate owner of a luxury penthouse apartment (the “Seller”), sought summary judgment dismissing the complaint seeking the return of the plaintiff’s (the “Buyer”) $2.75 million deposit. The factual record shows that, despite the Seller’s 50 years of exclusive access to the penthouse terrace and the existence of a proprietary lease clearly spelling out such exclusive use, the cooperative board (the “Board”) sent a letter to the prospective buyer advising that the upper roof of the building was common property available to all unit owners. Since the upper roof was only accessible by walking across the penthouse terrace, the letter amounted to a notification that the terrace would no longer be exclusive to the Buyer. After the Board unsuccessfully attempted to get the Buyer and Seller to execute an agreement confirming the same rooftop access right, the Seller commenced a declaratory judgment action against the Board seeking a declaration that the Seller, and the prospective Buyer, had exclusive rights to the terrace. This action was subsequently settled without the issuance of the requested declaration. The Buyer was not satisfied with this conclusion and attempted to cancel the contract and regain his deposit. When the Seller instead set a closing date, the Buyer refused to close and commenced the lawsuit at issue. The Seller then moved for summary judgment and the trial grant granted the motion, holding that the Seller had proven that it was “ready, willing and able” close.

The First Department, however, disagreed.

Articles Tagged with Summary Judgment

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Summary Judgment Denied Where Issue Of Fact Exists As To Whether Seller Was “Ready, Willing And Able” To Close