610 West Realty LLC v. Riverview West Contracting LLC

2017 NY Slip Op 28, 146 A.D.3d 422, 45 N.Y.S.3d 391

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 2017
• Docket: 2622 155357/13
• Status: Published

Opinion

Order, Supreme Court, New York County (Debra A. James, J.), entered August 4, 2015, which, insofar as appealed from, granted the motion of defendant B&V Contracting Enterprises, Inc. (B&V) for summary judgment dismissing the fourth cause of action alleging negligence as against it, unanimously affirmed, with costs.

Plaintiff was the sponsor of a condominium construction project, on which defendant Riverview West Contracting LLC was the general contractor, and B&V was a subcontractor hired by Riverview to perform certain carpentry and drywall work. Following the completion and opening of the condominium complex, it was discovered that B&V had performed certain of its work negligently.

The court properly dismissed the fourth cause of action alleging negligence against B&V, and seeking the cost of remediation and repair of B&Vs negligent work, because plaintiff cannot recover contract damages under a negligence theory (see 532 Madison Ave. Gourmet Foods v Finlandia Ctr, 96 NY2d 280 [2001]; Residential Bd. of Mgrs. of Zeckendorf Towers v Union Sq.-14th St. Assoc., 190 AD2d 636 [1st Dept 1993]). The fact that B&V’s work had to do with fire-safing and fire-stopping the premises is not sufficient to create an independent duty to plaintiff (see Church v Callanan Indus., 99 NY2d 104, 112 [2002]), and there is no allegation that B&V launched a force or instrument of harm (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]).

Concur — Saxe, J.P., Moskowitz, Gisehe, Kahn and Gesmer, JJ.