Bri-Den Constr. Co. v. Keppel & Kostow Architects

Appellate Division of the Supreme Court of New York

Bri-Den Constr. Co. v. Keppel & Kostow Architects

56 A.D.2d 355, 867 N.Y.S.2d 437

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 20, 2008

StatusPublished

Cited by4 cases

This text of 56 A.D.2d 355 (Bri-Den Constr. Co. v. Keppel & Kostow Architects) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bri-Den Constr. Co. v. Keppel & Kostow Architects, 56 A.D.2d 355, 867 N.Y.S.2d 437 (N.Y. Ct. App. 2008).

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Opinion

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered September 12, 2007, which granted defendants’ motion to dismiss the complaint, unanimously, affirmed, with costs.

There is admittedly no contractual privity between the parties, and the court properly found that plaintiff contractor failed to state a cause of action under any of the theories set forth in the complaint because it failed to demonstrate the “functional equivalent of contractual privity” under the three prong test set forth in Ossining Union Free School Dist. v Anderson LaRocca Anderson (73 NY2d 417, 419 [1989]). In Ossining the Court of Appeals rejected the argument that reliance on plans and specifications included in the bid package constituted the functional equivalent of privity, holding that any asserted reliance must be by a known party and not a class of potential parties, such as future bidders. Even were we to find that a class composed of prequalified bidders was sufficiently known for purposes of Ossining, the prequalified bidders were simply not “known” at the time of the complained-of conduct.

Because the complaint was properly dismissed for these reasons, we need not address the statute of limitations issue. Concur—Tom, J.P, Saxe, Sweeny, Catterson and DeGrasse, JJ.

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Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered September 12, 2007, which granted defendants’ motion to dismiss the complaint, unanimously, affirmed, with costs.

There is admittedly no contractual privity between the parties, and the court properly found that plaintiff contractor failed to state a cause of action under any of the theories set forth in the complaint because it failed to demonstrate the “functional equivalent of contractual privity” under the three prong test set forth in Ossining Union Free School Dist. v Anderson LaRocca Anderson (73 NY2d 417, 419 [1989]). In Ossining the Court of Appeals rejected the argument that reliance on plans and specifications included in the bid package constituted the functional equivalent of privity, holding that any asserted reliance must be by a known party and not a class of potential parties, such as future bidders. Even were we to find that a class composed of prequalified bidders was sufficiently known for purposes of Ossining, the prequalified bidders were simply not “known” at the time of the complained-of conduct.

Because the complaint was properly dismissed for these reasons, we need not address the statute of limitations issue. Concur—Tom, J.P, Saxe, Sweeny, Catterson and DeGrasse, JJ.

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Bluebook (online)

56 A.D.2d 355, 867 N.Y.S.2d 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bri-den-constr-co-v-keppel-kostow-architects-nyappdiv-2008.

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