Board of Mgrs. of the Philip House Condominium v. 141 E. 88th St., LLC
2025 NY Slip Op 32070(U)
N.Y. Sup. Ct., New York Cty.2025Background
- The case arises from alleged breaches of contract and violations of the Debt and Creditor Law relating to the condominium offering plan and related agreements at 141 East 88th Street, New York.
- The Board of Managers of the Philip House Condominium is the original plaintiff, with 141 East 88th Street LLC and others as defendants; third- and second third-party claims have been asserted against various contracting and service entities.
- First Service Residential (FSR), brought in as a second third-party defendant, served as the building's managing agent during the condominium conversion project.
- The Second Third-Party Complaint against FSR asserts claims for breach of contract, contractual and common law indemnification, contribution, breach of duty to procure insurance, and negligence, based on FSR’s contractual obligations.
- FSR moved to dismiss the second third-party complaint under CPLR § 3211(a)(1) and (7), arguing that its duties were limited and certain claims were unsupported by the contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract | FSR failed in broader contractual duties. | FSR's duties limited to overseeing interference reduction. | Motion to dismiss denied—factual issues remain. |
| Contractual indemnification | Entitled to indemnification by contract. | No contractual provision supports indemnification. | Dismissed—no contract provision cited. |
| Breach of duty to procure insurance | FSR obligated to procure insurance. | No specific contract clause requiring insurance. | Dismissed—no contract provision cited. |
| Common law indemnification/contribution | Should recover for other parties' fault. | Documentary evidence supports dismissal. | Motion to dismiss denied—issue not conclusively resolved. |
| Negligence (duplicative of contract) | FSR liable in tort as well as contract. | Negligence claim is duplicative of breach of contract claim. | Dismissed—plaintiff failed to show claim was not duplicative. |
Key Cases Cited
- Avgush v. Town of Yorktown, 303 A.D.2d 340 (standards for motion to dismiss under CPLR § 3211)
- Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137 (standards for sufficiency of pleadings in CPLR context)
- Leon v. Martinez, 84 N.Y.2d 83 (when documentary evidence warrants dismissal under CPLR § 3211)