BOARD OF MANAGERS OF 432 PARK CONDOMINIUM v. 56TH AND PARK NY OWNER LLC (2024)

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered June 6, 2023, which, insofar as appealed from, granted the motion of third-party defendants WSP USA Buildings, Inc. f/k/a Flack + Kurtz, Inc. and WSP USA Buildings, Inc. f/k/a WSP Cantor Seinuk Structural Engineers’ (collectively, WSP defendants) to dismiss the third-party common-law indemnification claims as against them, unanimously affirmed, with costs.

The court properly dismissed the third-party common-law indemnification claims as against WSP defendants.  Plaintiffs sought recovery from defendants/third-party plaintiff 56th and Park (N.Y.) Owner, LLC (Owner) because of Owner's alleged wrongdoing in failing to uphold its contractual obligations under the condominium's offering plan and the purchase agreements, which according to plaintiff, resulted in the construction and design defects of the condominium building.  Thus plaintiffs’ claim was not based on negligence by WSP defendants (see e.g. Chatham Towers, Inc. v. Castle Restoration & Constr., Inc., 151 A.D.3d 419, 420, 56 N.Y.S.3d 74 [1st Dept. 2017]).  Moreover, while plaintiffs alleged that Owner did not properly supervise and control the construction and design work, Owner did not, in the third-party complaint against WSP defendants, sufficiently allege that it fully delegated its duties to WSP defendants.  Rather, it retained certain responsibilities with regard to the performance of services by WSP defendants, as demonstrated by the terms of the engineering services contracts with WSP defendants (see Residential Bd. of Mgrs. of 310 W. 52nd St. Condominium v. El–Ad 52 LLC, 140 A.D.3d 536, 537–538, 35 N.Y.S.3d 12 [1st Dept. 2016];  see also Board of Mgrs. of Olive Park Condominium v. Maspeth Props., LLC, 170 A.D.3d 645, 647, 95 N.Y.S.3d 344 [2d Dept. 2019]).