Board of Mgrs. of Petit Verdot Condominium v. 732-734 WEA, LLC , 2023 NY Slip Op 01951 ( 2023 )

Board of Mgrs. of Petit Verdot Condominium v 732-734 WEA, LLC (2023 NY Slip Op 01951)

Board of Mgrs. of Petit Verdot Condominium v 732-734 WEA, LLC

2023 NY Slip Op 01951

Decided on April 18, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 18, 2023
Before: Kapnick, J.P., Moulton, Kennedy, Mendez, Pitt-Burke, JJ.

Index No. 162432/19 Appeal No. 57 Case No. 2022-05258

[*1]Board of Managers of Petit Verdot Condominium, Appellant,

v

732-734 WEA, LLC, et al., Respondents.

Leech Tishman Robinson Brog, PLLC, New York (David Abramovitz of counsel), for appellant.

Abrams Garfinkel Margolis Bergson, LLP, New York (Andrew W. Gefell of counsel), for respondents.

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered October 7, 2022, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the cause of action for breach of contract (the second cause of action) as against defendants Carter Sackman and James Hefelfinger, unanimously affirmed, without costs.

Plaintiff's breach of contract claim against Sackman and Hefelfinger, principals of the condominium sponsor, was properly dismissed because a private litigant "may not pursue a common-law cause of action where the claim is predicated solely on a violation of the Martin Act [(General Business Law art 23-A, § 352-e)] or its implementing regulation [(13 NYCRR § 20.4[b]), as is the case herein] and would not exist but for the statute" (Assured Guar. [UK] Ltd. v J.P. Morgan Inv. Mgt. Inc., 18 NY3d 341, 353 [2011]; see also Board of Mgrs. of Bayard Views Condominium v FPG Bayard, LLC, 187 AD3d 697, 699-700 [2d Dept 2020]; Board of Mgrs. of 184 Thompson St. Condominium v 184 Thompson St. Owner LLC, 106 AD3d 542, 544 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 18, 2023