Defendants Stephen B. Jacobs Group, P.C. and Stephen B. Jacobs ^[FN1] move for an order, pursuant to CPLR 3211 (a) (1) and (7), as well as CPLR 3016 (b), dismissing the complaint of plaintiff Board of Managers of One Grand Army Plaza as asserted against them.

Background

The plaintiff commenced the instant action by filing a summons with notice on September 22, 2011. The complaint, dated September 7, 2012, asserts twenty-four causes of action against the various the defendants, alleging that they, in essence, caused and allowed a residential luxury condominium building to be defectively built. The plaintiff is an association of building unit owners seeking damages representing the funds necessary to cure all outstanding defects resulting from the alleged shoddy construction.

As relevant to this motion, defendant Stephen B. Jacobs Group, P.C. was the architecture company retained, pursuant to a standard American Institute of Architects agreement dated September 25, 2003, by defendant Seventeen Development, LLC, the condominium sponsor, to prepare an architect's certification and description of the property, which the sponsor is required to include in the applicable offering plan. Defendant Stephen B. Jacobs is an architect and the principal of the professional corporation.

The essence of the complaint is that the various the defendants "caused the Building to be constructed in a manner that utterly failed to comply [either] with the promises they made in the Offering Plan or with construction industry standards, [a building] that is missing some of the key features and amenities promised in the Offering [*2]Plan, and that now requires millions of dollars in repairs. . . ." The plaintiff asserts five causes of action against the movants, sounding in breach of contract, negligence, negligent misrepresentation, professional malpractice, and fraud. The movants now seek an order dismissing the instant action insofar as asserted against them.

Movants' Arguments in Support of Motion

In support of their motion to dismiss the claims asserted against them, the movants first assert that the plaintiff has no viable breach of contract claim against them. The movants note that, pursuant to a written agreement with the Sponsor, they agreed to provide architectural services in connection with the design and construction of the subject building. However, argue the movants, the plaintiff is not a party to the subject agreement. Moreover, the movants point out that the subject agreement explicitly disclaims the right of any third party against the movants (or the Sponsor). For these reasons, the movants conclude that the plaintiff is an incidental beneficiary of the subject agreement, and thus does not have a third-party right to enforce it.

Next, the movants assert that the plaintiff's claims, insofar as asserted against the movants and based on the movants' certification of the subject offering plan, are barred by the Martin Act. More specifically, the movants note that their certification (the Architect's Certification and Description of the Property) was required by both the Martin Act and the implementing regulations promulgated by the Attorney General of the State of New York in connection with the offer to sell condominium units. The movants also point out that the certification was included in the subject offering plan. The movants reason that, therefore, any common-law cause of action, such as negligence, malpractice, misrepresentation and fraud, is preempted by the Martin Act. For these reasons, the movants conclude that the plaintiff's causes of action sounding in those common-law theories must be dismissed.

Alternatively, the movants allege that the plaintiff has not complied with the heightened pleading requirements for misrepresentation and fraud. The movants note that the alleged misrepresentations in the plaintiff's claims against the movants are simply recitations of the statements contained in the movants' architect certification and property description. Additionally, the movants argue that since the plaintiff alleges that the movants knew about purported construction defects in the subject building, a sustainable fraud claim requires the plaintiff to plead details of how and when the movants actively concealed the same defects from prospective unit purchasers. Lastly, the movants contend that the plaintiff's fraud and misrepresentation claims seem premised on a fiduciary relationship between the plaintiff and the movants and a corresponding duty to disclose information; the movants assert that no such fiduciary relationship or corresponding duty existed. The movants conclude that they are entitled, on this alternate ground, to an order dismissing the plaintiff's claims sounding in misrepresentation or fraud.

Moreover, and again in the alternative, the movants assert that the plaintiff's claims sounding in misrepresentation, malpractice and negligence are unsustainable. The movants reason that such claims, if sustainable, require the existence of a professional relationship, privity of contract or a relationship approaching privity between the plaintiff and the movants. Here, claim the movants, no such relationship exists between them and the plaintiff. The movants note that the pleading alleges no facts that suggest the existence of such a relationship, and suggest that the complaint conclusorily alleges a "special relationship" in an attempt to disguise the lack of supporting facts. For these additional reasons, the movants conclude that they are entitled to an order dismissing the [*3]plaintiff's claims sounding in misrepresentation, malpractice and negligence.

Lastly, the movants argue that the plaintiff's claims sounding in misrepresentation, malpractice and negligence should be dismissed as duplicative of the plaintiff's breach of contract claim. Here, contend the movants, the plaintiff is, in essence, alleging that the movants did not perform adequate professional work with respect to the subject building. The movants claim that their duty to perform architecture services arose from their agreement with the sponsor; thus, they reason, the alleged breach of a such a duty is simply an alleged breach of contract. The movants argue that, irrespective of how the plaintiff characterizes these additional causes of action, the plaintiff has not alleged facts demonstrating the existence of any duty owed by the movants other than their obligations pursuant to the subject agreement with the sponsor. For these additional reasons, the movants conclude that the plaintiff's claims sounding in misrepresentation, malpractice and negligence must be dismissed as duplicative.

Plaintiff's Arguments in Opposition to the Motion

In opposition to the instant motion, the plaintiff first alleges that, as an association of owners of building units, it is the successor-in-interest of the sponsor. The plaintiff reasons that, therefore, it is not a mere incidental beneficiary of the subject agreement. To the contrary, claims the plaintiff, the language in the subject agreement contemplates that unit owners are entitled to the benefits that the sponsor was entitled to. Additionally, the plaintiff asserts that the Real Property Law allows it, an organization of condominium owners, to commence and maintain this action against the movants.

Next, the plaintiff contends that the complaint is not barred by the Martin Act. More specifically, the plaintiff maintains that causes of action premised on affirmative misrepresentations contained in an offering plan are not precluded. The plaintiff alleges in this action that the movants made several statements (not omissions) about the subject building in the movants' certification and description of the property that are allegedly false. The plaintiff concludes that, notwithstanding the Martin Act, it may maintain this action against the movants because the complaint alleges that the movants made affirmative misstatements in the relevant documents.Also, the plaintiff notes that two of the causes of action (negligence and professional malpractice) are not based on misrepresentations. The plaintiff reasons that since the Martin Act does not preclude tort claims that do not sound in fraud or misrepresentation, these common-law claims should survive the instant motion to dismiss. The plaintiff also contends that the allegations in the complaint exceed the particularity requirement for sustainable fraud claims. The plaintiff states that the complaint is replete with alleged false statements about the subject building that the movants affirmatively made in their certification and description of the property. Additionally, the plaintiff argues that, contrary to the movants' position, the existence of a fiduciary relationship or duty to disclose material facts is not a requisite for the plaintiff's fraud claim based on the movants' allegedly false affirmative misrepresentations.

Next, the plaintiff asserts that the movants, as architects that signed the certification and description documents, were responsible to supervise the proper construction of the subject building. The plaintiff claims that, by wrongfully certifying that the subject building was adequately constructed, the movants breached their professional duty of care. Therefore, reasons the plaintiff, the claims based on an alleged breach of duty (negligent misrepresentation, negligence and malpractice) are sustainable. Lastly, the plaintiff asserts that its members were induced to enter into contracts (i.e. purchase units) based on the movants' alleged misstatements about the building, and the [*4]plaintiff's fraud and misrepresentation claims are thus not duplicative of the plaintiff's breach of contract claims. For these reasons, the plaintiff concludes that the instant motion must be denied.

Discussion

This court grants the instant motion and dismisses the complaint as against the movants. First, this court notes the applicable standards for determining a motion to dismiss pursuant to CPLR 3211 (a) (1). In considering a motion to dismiss, the pleadings must be given their most favorable intendment (Arrington v New York Times Co., 55 NY2d 433, 442 [1982]). However, a complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed (Well v Rambam, 300 AD2d 580, 581 [2002]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 162 [1997], cert. denied 522 US 967 [1997]). To properly support a motion for dismissal pursuant to CPLR 3211 (a) (1), the contents of the proffered documentary evidence must be "essentially undeniable" (Fontanetta v John Doe 1, 73 AD3d 78, 85-85 [2d Dept 2010], citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22). Examples of documents of which the contents are "essentially undeniable" include judicial records, mortgages, deeds, contracts, written agreements (such as trust and lease agreements) and notes (Fontanetta, 73 AD3d at 84-85). Documents that are, in essence, unilaterally created by a party (such as affidavits, letters, notes or file documents) do not contain "essentially undeniable" information and thus do not properly support a motion to dismiss pursuant to CPLR 3211 (a) (1) (Fontanetta, 73 AD3d at 85-86). "In sum, to be considered documentary,' evidence must be unambiguous and of undisputed authenticity" (Fontanetta, 73 AD3d at 86, citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22).

Next, this court notes the applicable standard in determining a motion to dismiss pursuant to CPLR 3211 (a) (7). In considering a motion to dismiss for failure to state a cause of action, "the pleadings must be liberally construed" and "[t]he sole criterion is whether from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Gershon v Goldberg, 30 AD3d 372, 373 [2d Dept 2006], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see also Dinerman v Jewish Bd. of Family & Children's Servs., Inc., 55 AD3d 530, 531 [2d Dept 2008]; Morone v Morone, 50 NY2d 481, 484 [1980]; 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509 [1979]). This court may consider affidavits and other evidentiary material submitted by the movant to establish conclusively that no viable causes of action exist (Simmons v Edelstein, 32 AD3d 464, 465 [2006]; Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]). A court considering a motion to dismiss must both accept as true the allegations in the complaint and afford the plaintiff the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Great Eagle Intl. Trade, Ltd. v Corporate Funding Partners, LLC, 104 AD3d 731 [2d Dept 2013]); nevertheless, allegations in the complaint that either consist of bare legal conclusions or contain factual claims flatly contradicted by the record are not entitled to favorable inferences (see e.g. Garber v Board of Trustees of State Univ. of NY, 38 AD3d 833, 834 [2007]; see also Maas v Cornell Univ., 94 NY2d 87, 91 [1999]; Doria v Masucci, 230 AD2d 764 [2d Dept 1996], lv denied 89 NY2d 811 [1997]). In essence, the court must determine whether the alleged causes of action are sustainable "upon any reasonable view of the facts as stated" (Schneider v Hand, 296 AD2d 454, 454 [2d Dept 2002]; see also Manfro v McGivney, 11 AD3d 662, 663 [2d Dept 2004]). [*5]

First, the court dismisses the plaintiff's breach of contract claim against the movants. It is undisputed that the plaintiff is not a party to the agreement, which is between the sponsor and Jacobs. Therefore, and in order for the plaintiff to assert third-party beneficiary rights under the subject agreement, the plaintiff must "establish[] (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [its] benefit and (3) that the benefit to [it] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [it] if the benefit is lost" (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983]). Here, the plaintiff cannot do so. The subject agreement ^[FN2] provides, in section 9.7, that "[n]othing contained in this agreement shall create a contractual relationship with or cause of action in favor of a third party against either the Owner [sponsor] or Architect [Jacobs]." Since the subject agreement expressly disclaims any intention to give unit owners (or an association thereof) third-party beneficiary rights, the plaintiff has no sustainable breach of contract claim against the movants (Board of Mgrs. of 374 Manhattan Ave. Condominium v Harlem Infil LLC, 2010 NY Slip Op 31518 [U] [Sup Ct, NY County 2010], see also Kerusa Co. LLC v W10 Z/515 Real Estate Limited Partnership, 50 AD3d 503, 504 [1st Dept 2008] [the plaintiff has no viable breach of contract claim against architect with whom owner had "no contractual or other relationship"]; cf. Board of Mgrs. of Alfred Condominium v Carol Mgt., 214 AD2d 380, 382 [1995], lv dismissed 87 NY2d 942 [1st Dept 1996] [unit owners have rights under agreement between sponsor and construction manager that explicitly refers to unit owners as beneficiaries]). Lastly, and contrary to the plaintiff's suggestion, the allegation that the plaintiff's members are "successors" of the sponsor is insufficient to establish the requisite contractual privity (see e.g. Sutton Apts. Corp. v Bradhurst 100 Dev. LLC, 36 Misc 3d 1205[A], 2012 NY Slip Op 31671[U] [Sup Ct, NY County 2012] [dismissing unit owner breach of contract claim against architect despite argument that owner was successor of sponsor]). For these reasons, the plaintiff's breach of contract claim is dismissed as against the movants.

Likewise, this court dismisses the plaintiff's negligent misrepresentation and fraud claims against the movants. "It has long been the law in New York that a plaintiff in an action for negligent misrepresentation must show either privity of contract between the plaintiff and the defendant or a relationship so close as to approach that of privity" (Sykes v RFD Third Ave. 1 Assocs., LLC, 15 NY3d 370, 372 [2010] [internal quotation omitted]). Here, no such privity between the plaintiff and the movants exists. Also, claims based on alleged misrepresentation must be supported by an allegation that the plaintiff was "a known party' (i.e., one or more unit-owners known to the Architect Defendants) at the time of the alleged misrepresentation" (Board of Mgrs. of 374 Manhattan Ave. Condominium, supra). Contrary to the plaintiff's suggestion, it is insufficient to simply state that the unit owners were prospective purchasers who relied on the subject offering plan (Sutton Apts. Corp., 36 Misc 3d 1205[A] at *6-7, quoting Sykes, 15 NY3d at 372). This reasoning also suggests that the plaintiff cannot demonstrate particularized reliance on the alleged misstatements in the subject offering plan; therefore, the plaintiff has no viable cause of action sounding in fraud against the movants (Sutton Apts. Corp., 36 Misc 3d 1205[A] at *6). Alternatively, the fraud claim is unsustainable since the alleged fraud is not collateral or extraneous to Jacobs' [*6]contractual duty to provide architect services (see e.g. Alamo Contr. Bldrs. v CTF Hotel Co., 242 AD2d 643, 644 [1997]). For these reasons, the court dismisses the negligent misrepresentation and fraud claims against the movants.^[FN3]

Lastly, this court dismisses the negligence and malpractice claims against the movants. "The allegations of negligence appearing in the complaint are based on defects in the construction of the condominium and, as such, sound in breach of contract rather than tort" (Sutton Apts. Corp. 36 Misc 3d 1205[A] at *5, citing Gallup v Summerset Homes, LLC, 82 AD3d 1658 [4th Dept 2011]; Hamlet on Olde Oyster Bay Home Owners Association, Inc. v Holiday Organization, Inc., 65 AD3d 1284 [2d Dept 2009]; Stardial Communications Corp. v Turner Construction Company, 305 AD2d 126 [1st Dept 2003); Rothstein v Equity Ventures, 299 AD2d 472 [2d Dept 2002]). Since "[s]imply alleging a duty of care does not transform a breach of contract [claim] into a tort claim" (Clemens Realty, LLC v New York City Dept. of Educ., 47 AD3d 666, 667 [2d Dept 2008] [internal quotation marks and citation omitted]), the plaintiff has no viable negligence cause of action against the architect defendants (The Bd. of Managers of the Lore Condominium v Gaetano, 2012 NY Slip Op 32654[U] [Sup Ct, NY County 2012]). Put differently, the negligence claim is unsustainable because the complaint does not show that the movants owed a legal duty to the unit owners, (see e.g. Friedman v Anderson 23 AD3d 163, 164 [1st Dept 2005]). Similarly, "in the absence of a relationship approaching privity, a claim for architectural malpractice is properly dismissed" (Board of Mgrs. of NV 101 N 5th St. Condominium v Morton, 39 Misc 3d 1212[A] at *12, 2013 NY Slip Op 50575[U] [Sup Ct, Kings County 2013], citing 905 5th Assoc. v Weintraub, 85 AD3d 667, 668 [2011]). Since no such relationship is present here, the plaintiff has no viable professional malpractice cause of action against the architect defendants Board of Mgrs. of NV 101 N 5th St. Condominium, 39 Misc 3d 1212[A] at *12, citing Board of Mgrs. of the 231 Norman Ave. Condominium, 2012 NY Slip Op 51573[U] at *8-9, citing 905 5th Assoc. v Weintraub, 85 AD3d 667, 668 [2011]). For these reasons, the plaintiff's negligence and malpractice claims are also dismissed as against the movants.

In sum, the motion of defendants Stephen B. Jacobs Group, P.C. and Stephen B. Jacobs is granted in its entirety. All claims contained in the complaint of the plaintiff Board of Managers of One Grand Army Plaza are dismissed, pursuant to CPLR 3211 (a) (7), against the defendants Stephen B. Jacobs Group, P.C. and Stephen B. Jacobs.

The foregoing constitutes the decision and order of the court.E N T E R,

_____________________________

yvonne lewis, J.S.C.