CALDWELL v. TWO COLUMBUS AVENUE CONDOMINIUM

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Supreme Court, Appellate Division, First Department, New York.

Clara CALDWELL, et al., Plaintiffs, v. TWO COLUMBUS AVENUE CONDOMINIUM, et al., Defendants.

Two Columbus Avenue Condominium, et al., Third-Party Plaintiffs-Respondents, v. DeSimone, Chaplin and Dobryn Consulting Engineers, P.C., et al., Third-Party Defendants-Appellants, Lehrer McGovern Bovis Inc., et al., Third-Party Defendants.

Decided: March 29, 2007

ANDRIAS, J.P., FRIEDMAN, BUCKLEY, SWEENY, CATTERSON, JJ. Zetlin & De Chiara LLP, New York (David Abramovitz of counsel), for appellants. Callan, Koster, Brady & Brennan, LLP, New York (David A. LoRe of counsel), for Two Columbus Avenue Condominium and The Residential Board of Managers of Two Columbus Avenue, respondents. Brody, Benard & Branch LLP, New York (Matthew F. Rice of counsel), for Two Columbus Associates LLC, New York Urban Property Management Corporation and Urban Associates LLC, respondents.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 25, 2006, which, in an action by the owners of a condominium unit against the condominium for personal injury and property damage caused by infiltration of water into the unit, insofar as appealed from, denied the motion of third-party defendants-appellants structural design engineers to dismiss the condominium's third-party complaint as against them for failure to state a cause of action, unanimously reversed, on the law, with costs, the motion granted and said third-party complaint dismissed.   The Clerk is directed to enter judgment accordingly.

The third-party complaint, liberally construed (see EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ) and as amplified by the report of the engineer retained by the condominium, provides no detail of any type that the water infiltration was caused by structural defects attributable to the design of the building.   Thus, the complaint fails to state a cause of action against third-party defendants-appellants and the motion to dismiss should be granted.