LLC v. LLC (2017)

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Order, Supreme Court, New York County (Debra A. James, J.), entered August 4, 2015, which, insofar as appealed from, granted the motion of defendant B & V Contracting Enterprises, Inc. (B & V) for summary judgment dismissing the fourth cause of action alleging negligence as against it, unanimously affirmed, with costs.

Plaintiff was the sponsor of a condominium construction project, on which defendant Riverview West Contracting LLC was the general contractor, and B & V was a subcontractor hired by Riverview to perform certain carpentry and drywall work.  Following the completion and opening of the condominium complex, it was discovered that B & V had performed certain of its work negligently.

The court properly dismissed the fourth cause of action alleging negligence against B & V, and seeking the cost of remediation and repair of B & V's negligent work, because plaintiff cannot recover contract damages under a negligence theory (see 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 N.Y.2d 280 [2001];  Residential Bd. of Mgrs. of Zeckendorf Towers v Union Sq.–14th Assoc., 190 A.D.2d 636 [1st Dept 1993] ).  The fact that B & V's work had to do with fire-safing and fire-stopping the premises is not sufficient to create an independent duty to plaintiff (see Church v. Callanan Indus., 99 N.Y.2d 104, 112 [2002] ), and there is no allegation that B & V launched a force or instrument of harm (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002] ).

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CLERK