N Francesco Regini, Plaintiff–Respondent, v. SDS LLC (2015)

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Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 1, 2013, which insofar as appealed from as limited by the briefs, granted plaintiff's motion for leave to file a second amended complaint asserting claims against defendant SDS Leonard, LLC, for breach of fiduciary duty and breach of warranty, unanimously modified, on the law, to deny the motion as to the breach of fiduciary duty claim, and otherwise affirmed, without costs.

To the extent it asserts a claim against defendant SDS Leonard for breach of warranty under the offering plan, the proposed amendment is not plainly lacking in merit.   Nor will defendant suffer any prejudice as a result of it.   However, the breach of fiduciary duty claim is duplicative of the breach of warranty claim, since both are based on SDS's alleged breach of its obligations under the offering plan, i.e., to repair and maintain the common elements of the building (see Mosaic Caribe, Ltd. v. AllSettled Group, Inc., 117 AD3d 421 [1st Dept 2014] ).   The breach of fiduciary duty claim is also otherwise palpably without merit, since, to the extent it purports to assert a fiduciary duty arising from something other than the terms of the offering plan, it fails to identify any other basis for finding such duty.

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CLERK