595 N.Y.S.2d 492 | N.Y. App. Div. | 1993
—In an action, inter alia, to recover damages for negligent misrepresentation arising out of the conversion of eight buildings to condominium/cooperative ownership, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Graci, J.), dated April 11, 1990, as granted those branches of the respondents’ motion which were to dismiss the third, fifth, twelfth, thirteenth, fourteenth and fifteenth causes of action in the amended verified complaint insofar as they are asserted against them. The appeal brings up for review so much of an order of the same court, dated September 25, 1990, as, upon reargument, adhered to the original determination (see, CPLR 5517 [b]).
Ordered that the appeal from the order dated April 11, 1990, is dismissed, as that order was superseded by the order dated September 25, 1990, made upon reargument, and it is further,
Ordered that the order dated September 25, 1990, is affirmed insofar as reviewed; and it is further,
Ordered that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.
The Cooperative commenced this action against, among others, the sponsors and the Condo Board, seeking damages and related relief on causes of action asserted under common law and various statutes and regulations, including the Martin Act (General Business Law art 23-A). Upon the respondents’ motions, the Supreme Court dismissed, inter alia, the third, fifth, twelfth, thirteenth, fourteenth and fifteenth causes of action. On appeal, we find that the court properly dismissed those causes of action.
It is now well settled that there is no private cause of action under the Martin Act (see, CPC Intl. v McKesson Corp., 70 NY2d 268; Vermeer Owners v Guterman, 78 NY2d 1114; Board of Mgrs. v Fairways at N. Hills, 150 AD2d 32). Accordingly, the court properly dismissed the Cooperative’s fifth cause of action which sought damages for an alleged violation of the Martin Act. Similarly, the Supreme Court properly dismissed the Cooperative’s third cause of action to recover damages for negligent misrepresentation, because this cause of action sought, in essence, to pursue a private cause of action under the Martin Act (see, Horn v 440 E. 57th Co., 151 AD2d 112, 120).
Equally unavailing is the Cooperative’s contention that the Supreme Court erred in dismissing its twelfth and thirteenth causes of action, which are predicated upon the sponsors’ failure to disclose to potential purchasers of the Residential Units the existence and availability of the tenant association’s
The Cooperative’s fourteenth and fifteenth causes of action alleged that the sponsors violated Administrative Code of the City of New York § 26-703 (a) by transferring the reserve fund to the Condo Board instead of to the Coop Board. Administrative Code § 26-703 (a) provides that the sponsor shall transfer the reserve fund "to the cooperative corporation or condominium board of managers” (emphasis added). The court therefore properly dismissed these causes of action based upon its conclusion that the sponsors complied with this regulation when they transferred the reserve fund to the Condo Board.
The Cooperative’s remaining contentions are either unpreserved for appellate review or without merit. Mangano, P. J., Sullivan, Balletta and O’Brien, JJ., concur.