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

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.