75 FIRST AVENUE CLUB LLC v. Safti First, Defendant–Appellant. (2024)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered May 31, 2023, which, to the extent appealed as limited by the briefs, denied defendant Safti First's (Safti) motion to dismiss pursuant to CPLR 3211(a)(7) the breach of express warranty, breach of implied warranty, and breach of implied contract claims, unanimously reversed, on the law, without costs, and the motion granted.

A third party may sue to enforce its rights on a contract made for its benefit in two situations:  “when the third party is the only one who could recover for the breach of contract or when it is otherwise clear from the language of the contract that there was ‘an intent to permit enforcement by the third party’ ” (Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d 704, 710, 70 N.Y.S.3d 893, 94 N.E.3d 456 [2018], quoting Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 45, 495 N.Y.S.2d 1, 485 N.E.2d 208 [1985]]).  With respect to construction contracts, the Court of Appeals generally requires “express contractual language stating that the contracting parties intended to benefit a third party by permitting that third party ‘to enforce a promisee's contract with another’ ” (Samson Constr. Co., 30 N.Y.3d at 710, 70 N.Y.S.3d 893, 94 N.E.3d 456, quoting Port Chester Elec. Constr. Corp. v. Atlas, 40 N.Y.2d 652, 655, 389 N.Y.S.2d 327, 357 N.E.2d 983 [1976] [internal brackets omitted]).

Plaintiff purports to be a third-party beneficiary to the contract between defendants United Glass Systems Corp./United Glass Systems (collectively UGS) and Safti to supply glass for the windows that were installed in plaintiff's building.  It maintains that UGS and Safti intended to permit plaintiff to enforce the contract.  In support of this position, plaintiff points to Safti's alleged conduct in “wanting to make it right” following UGS's installation of glass manufactured by Safti, and the purchase order from UGS to Safti, which lists plaintiff's address as the delivery location.  Safti's conduct and plaintiff's address listed on the purchase order are neither “express contractual language” nor otherwise sufficient conduct evincing UGS's and Safti's intent to permit plaintiff to enforce their contract as a third-party beneficiary (see id.;  Board of Mgrs. of Fifth Ave. Condominium v. 141 Acquisition Assoc., LLC, 179 A.D.3d 627, 628, 118 N.Y.S.3d 571 [1st Dept. 2020];  see also Residential Bd. of Mgrs. of 310 W. 52nd St. Condominium v. El–Ad 52 LLC, 140 A.D.3d 536, 537, 35 N.Y.S.3d 12 [1st Dept. 2016]).  Indeed, the Safti Standard Terms and Conditions of Sale explicitly states that “under no circumstances shall [Safti] be liable to buyer or any third party under tort, contract, or any other theory for ․ any other economic loss, or any incidental, direct, indirect, special or consequential damages.”  Accordingly, the breach of warranty claims should have been dismissed (see e.g. Structure Tone, Inc. v. Universal Servs. Group, Ltd., 87 A.D.3d 909, 912, 929 N.Y.S.2d 242 [1st Dept. 2011]).

Also, the court should have dismissed plaintiff's implied-in-fact contract claims based on purported promises by Safti's representative to pay for plaintiff's re-installation costs.  Plaintiff failed adequately to plead an implied contract claim.  Plaintiff's principal averred only that Safti's representative told plaintiff that they could talk about whether Safti would cover plaintiff's re-installation costs but that he would have to discuss it with his partner.  Accordingly, there was no meeting of the minds (see Maas v. Cornell Univ., 94 N.Y.2d 87, 93, 699 N.Y.S.2d 716, 721 N.E.2d 966 [1999];  I.G. Second Generation Partners, L.P. v. Duane Reade, 17 A.D.3d 206, 208, 793 N.Y.S.2d 379 [1st Dept. 2005]).

Additionally, plaintiff did not identify the contractual provision Safti allegedly violated (see Kraus v. Visa Intl. Serv. Ass'n., 304 A.D.2d 408, 408, 756 N.Y.S.2d 853 [1st Dept. 2003]), or allege that any consideration was given for Safti's promise to cover the cost of re-installation (see Maas, 94 N.Y.2d at 93–94, 699 N.Y.S.2d 716, 721 N.E.2d 966).  The court should not have considered counsel's contention, made without basis in the record, that plaintiff offered to delay suit against Safti if Safti paid for the re-installation of the windows (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).