Goldberg Weprin & Ustin, L. L. P. v. Tishman Construction Corp.

275 A.D.2d 614, 713 N.Y.S.2d 57, 2000 N.Y. App. Div. LEXIS 9157

Opinions

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about June 15, 1999, which, to the extent appealed from, granted defendants’ motions to dismiss the amended complaint pursuant to CPLR 3211 (a) (7), and denied plaintiffs motion for class certification as academic, affirmed, without costs.

Plaintiff, purporting to represent a class of similarly situated businesses and individuals with offices or residences in the Times Square area, seeks damages for purely economic losses alleged to have resulted from the closing of the Times Square area, by order of the City of New York, due to the collapse of an elevator tower being used in connection with defendants’ construction project, on theories of gross negligence, strict liability for abnormally dangerous activity, public nuisance, and private nuisance. We affirm the dismissal of the complaint on the ground that, in the absence of any alleged physical property damage, the connection between defendants’ activities and plaintiffs economic losses alleged to have resulted from the City’s action is too tenuous and remote to permit recovery on any tort theory (see, e.g., Bristol-Myers Squibb v Delta Star, 206 AD2d 177, 180; Beck v FMC Corp., 53 AD2d 118, affd for reasons stated 42 NY2d 1027; Schneider Natl. v State of New York, 138 Misc 2d 205; see also, Petitions of Kinsman Tr. Co., 388 F2d 821, 824). Since the complaint is legally insufficient insofar as it purports to assert a claim on behalf of plaintiff individually, the motion court correctly denied the motion for class certification as academic. Concur — Nardelli, J. P., Williams, Wallach and Saxe, JJ.