KABACK ENTERPRISES INC v. TIME INC (2006)

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered April 15, 2005, which, inter alia, granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff, a construction subcontractor, claims to be in privity with defendant tenant because plaintiff contracted with defendant's construction manager, rather than with a general contractor.   However, regardless of whether the intermediary was a construction manager or a general contractor, plaintiff's claims are barred by various provisions of the construction management agreement incorporated by reference in plaintiff's subcontract and bid documents, which expressly preclude actions by third parties, including subcontractors, against defendant (see Braun Equip. Co., Inc. v. Meli Borelli Assocs., 220 A.D.2d 312, 632 N.Y.S.2d 549 [1995] ).