Board of Mgrs. of the Caton Ct. Condominium v Caton Dev. LP (2013 NY Slip Op 51951(U))

Board of Mgrs. of the Caton Ct. Condominium v Caton Dev. LP

2013 NY Slip Op 51951(U)

Decided on November 26, 2013

Supreme Court, Kings County

Rivera, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Recitation in accordance with CPLR 2219(a) of the defendants' Gerald J.

Caliendo, R.A., AIA Architect, P.C, and Gerald J. Caliendo, R.A. (hereinafter collectively "the Caliendo Architect defendants") joint motion, filed on July 1, 2013 under motion sequence number two, for an order dismissing the complaint and all cross-claims asserted against them pursuant to CPLR 3211(a)(1) and (7) and 214(6) based on plaintiff's failure to state a cause of action and documentary evidence showing that the commencement of the action is untimely.

-Notice of Motion

-Affirmation and Affidavit in support

Recitation in accordance with CPLR 2219(a) of the co-defendants' Caton Development LP (hereinafter "Caton"), Parkside Development Group LLC (hereinafter "Parkside"), Steven Rubinstein (hereinafter "Rubinstein", and Eric Rosen (hereinafter "Rosen") (hereinafter collectively "the sponsor defendants") joint motion, filed on July 19, 2013, under motion sequence number three, for an order: (1) compelling the plaintiffs to arbitrate their claims pursuant to CPLR 7506 and dismissing the complaint pursuant to CPLR 3013 and 3211(a)(7) for failure to plead the causes of action with the requisite particularity; or in the alternative (2) dismissing the second, third, fourth, fifth, seventh, ninth, tenth, twelfth and thirteenth cause of action pursuant to CPLR 3211(a)(7) for failing to state a cause of action; (3) dismissing the seventh cause of action pursuant to CPLR 3016 and 3211(a)(7) for failing to plead a claim of fraud with the requisite particularity; (4) dismissing the ninth and tenth cause of action pursuant to CPLR 3211(a)(3) on the basis that the plaintiff lacks capacity to sue.

-Notice of Motion

-Affirmation in Support

On July 28, 2011, the Board of Managers of the Caton Court Condominium (hereinafter the "plaintiff" or the "Board") commenced the instant action by filing a summons with notice with the Kings County Clerk's office (KCCO). On March 12, 2013, the Board served the defendants with a verified complaint. No defendant has interposed an answer to the complaint. [*2]

The complaint is verified by a member of the Board and contains two hundred and ten allegations of fact in support of thirteen causes of action. By order of this court dated October 4, 2013, the Board was granted leave to discontinue the tenth cause of action without opposition.

The first cause of action is against the sponsor defendants for breach of contract. The second is against all defendants for breach of contract. The third is against the sponsor defendants for breach of express warranty. The fourth is against the sponsor defendants for breach of common law implied housing merchant warranty. The fifth is against all defendants for negligence. The sixth is for professional malpractice against the Caliendo Architect defendants. The seventh is for fraud and negligent misrepresentation against the sponsor defendants. The eight is for fraud and negligent misrepresentation against the Caliendo Architect defendants. The ninth is for violation of NY GBL 349(a) against the sponsor defendants. The eleventh is for negligent supervision against the sponsor defendants. The twelfth is for specific performance and equitable relief against the sponsor defendants. The thirteenth is for equitable relief against the sponsor defendants.

The complaint alleges, among other things, that all the defendants failed to comply with the terms of the purchase agreement for the Caton Court Condominium. The Board has asserted that the defendants failed to construct the building substantially in accordance with the Offering Plan, the Plans and Specifications filed with and approved by the New York City Building Code, and local industry standards. The alleged failure has resulted in numerous construction defects which have caused life, health and safety hazards to the residents of the Condominium.

LAW ANDAPPLICATION

The verified complaint describes the parties as follows. Plaintiff is the Board of Managers of the Caton Court Condominium, an unincorporated association of unit owners owning certain real property located at 1735 Caton Avenue, Brooklyn, New York. Caton is a limited liability partnership and the sponsor and developer of the offering plan related to subject condominium. Parkside is a limited liability company and the general partner of Caton. Rubinstein and Rosen are principals of Parkside. Gerald J. Caliendo, R.A., AIA Architect, P.C. are the architects retained by Caton in connection with the design of the building and in connection with the preparation of the offering plan. Gerald J. Caliendo (hereinafter Gerald) is the principal and president of Caliendo Architect and the individual who signed the Architect's Certification contained in the Offering Plan for the subject condominium.

The Caliendo Architect Defendants' Motion

The Caliendo Architect defendants have moved pre-answer to dismiss the complaint and all cross-claim asserted against them pursuant to CPLR 3211(a)(1) and (7) on the basis that the documentary evidence establishes that the Board's claims against them are barred by the Martin Act and the applicable statute of limitations. They also contend that the owners of the condominium units are not in privity with the defendants and are not intended beneficiaries of any of the defendants' contracts.

The Calinedo Architect's motion to dismiss all cross-claims asserted against them is denied without prejudice for failure to annex to their motion papers a copy of the pleadings containing said cross-claims (CPLR 2214(c); see Alizio v Perpignano, 225 AD2d 723 [2nd Dept [*3]1996]).

A motion to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law (Stathakos v Metropolitan Transit Authority Long Island R.R., 109 AD3d 979, 980 [2nd Dept 2013] citing Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]). To qualify as documentary evidence, for the purpose of a motion to dismiss, the evidence must be unambiguous and of undisputed authenticity (Pasquaretto v Long Island University, 106 AD3d 794, 795 [2nd Dept 2013] citing Fontanetta v John Doe 1, 73 AD3d 78, 86 [2nd Dept 2010]). Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1) (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 997 (2nd Dept 2010).

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (see Stucklen v Kabro Assocs., 18 AD3d 461, 462 [2nd Dept 2005]). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate ( see Guggenheimer v Ginzburg, 43 NY2d 268, 274—275 [1977]; Norment v Interfaith Ctr. of NY, 98 AD3d 955 [2nd Dept 2012]). Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss (EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005]). However, bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference (see Doria v Masucci, 230 AD2d 764 [2nd 1996]).

A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (Sokol v Leader, 74 AD3d 1180, 1181-1182 [2nd Dept 2010] citing Rovello v Orofino Realty Co., 40 NY2d 633, 636—638 [1976]). If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one (Id.). Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action (Id.). Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it (Id.).

In support of their motion, the Caliendo Architect defendants have submitted an affirmation of their attorney, Jonathan P. Pirog (Pirog) and six annexed exhibits labeled A through G. Exhibit A contains defendant Gerald's affidavit. Exhibit B is a New York State Reporter Slip opinion arising from a different case. Exhibit C is the a copy of the summons with notice used to commence the instant action. Exhibit D is the Caliendo Architect defendants' demand for a complaint. Exhibit E is a copy of the instant verified complaint. Exhibit F is an [*4]interim order of this court which permitted the defendants to either move to dismiss or answer the complaint by a specified date. Exhibit G is described in the 73rd footnote of Pirog's affirmation as "pertinent portions of the offering plan and a sample purchase agreement and condominium unit deed."Further Gerald's affidavit contains six annexed exhibits. He describes exhibit 1 as the agreement with Criterion Group, LLC to provide architectural services for the construction of the condominium to be located at 1735 Caton Avenue. However, exhibit 1 actually contains a cover letter to the Criterion Group, LLC pertaining to a fee dispute. The cover letter refers to enclosed invoices but only one document is annexed, that is, an unsigned letter denominated as a proposal for architectural services. Gerald describes exhibit 2 as two agreements with Topline Contracting, Inc., dated April 13th and June 8th, 2005, respectively. However, exhibit 2 actually contains two unsigned letter denominated as proposals for architectural services. Gerald describes exhibit 3 as an agreement with Caton LLP dated June 8, 2005. However, exhibit 3 is another unsigned letter denominated as a proposal for architectural services. Exhibit 5 is described as the "Proposed Condominium Caton Development Report" that was to be incorporated with the condominium's offering plan. However, there is no document annexed to the exhibit 5 tab. Consequently, exhibit G, the "pertinent portions of the offering plan" is the only document arguably within the intendment of CPLR 3211(a)(1) that the Caliendo Architect defendants submitted in support of their motion. However, even that exhibit is not of undisputed authenticity and is admittedly incomplete.

As to the substantive contents of Gerald's affidavit he has averred that he did not know the identity of any individual condominium unit owner, that he had no interaction or communication with any individual condominium unit owner and that he did not make any known false misrepresentations.

Pirog avers knowledge of the facts alleged in his affirmation based on a review of his law firms' case file. His affirmation, however, demonstrates no personal knowledge of any of the facts alleged in the complaint or any of the transactions referred to in his affirmation. It therefore has no evidentiary value (Feratovic v Lun Wah, Inc., 284 AD2d 368, 369 [2nd Dept 2001]).

A cause of action to recover damages against an architect for professional malpractice is governed by a three-year statute of limitations (see CPLR 214(6); Vlahakis v Belcom Dev., 86 AD3d 567, 567—568 [2nd Dept 2011]). In addressing the issue of when a cause of action for malpractice accrues, the Appellate Division, Second Department, explained that "[a] cause of action to recover damages against an architect for professional malpractice ... accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship. The completion of an architect's obligations must be viewed in light of the particular circumstances of the case" (Id.). Thus, "[a]n owner's claim against a design professional accrues ... when the designer completes its performance of significant (i.e. non-ministerial) duties under the parties' contract (Sendar Dev. Co. v CMA Design Studio, 68 AD3d 500, 503 [2009], quoting Parsons Brinckerhoff Quade & Douglas v.EnergyPro Constr. Partners, 271 AD2d 233, 234 [2000]). [*5]

The Board commenced the instant action on July 28, 2011, when it filed the summons with notice with the KCCO. Paragraph 36 of the Board's verified complaint alleges that the Caliendo Architect defendants performed architectural services for the condominium until at least August 20, 2009. In light of the foregoing, the Caliendo Architect defendants have failed to submit documentary evidence conclusively establishing that the time in which to sue them had expired.

The Board's second cause of action charges the Caliendo Architect defendants with breach of contract. The Caliendo Architect defendants contend that they lack contractual privity with the unit owners of the condominium and that the unit owners are not third party beneficiaries of their contracts with the sponsor defendants. "A party asserting rights as a third-party beneficiary must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost." (State of California Pub. Employees' Ret. Sys. v Shearman & Sterling, 95 NY2d 427, 434—35 [2000]). For the Caliendo Architect defendants to show that the condominium unit owners are not in privity with them and not the intended beneficiaries of their contracts with the sponsor defendants, they would have to annex copies of their contracts with the sponsor defendants demonstrating that fact (CPLR 2214(c)). They did not. Consequently, their motion to dismiss the breach of contract claim against them is denied.

The Board's fifth cause of action charges the Caliendo Architect defendants with negligence. The allegations of negligence appearing in the complaint are based on their alleged failure to exercise reasonable care and skill in the oversight of the construction of the units, contrary to the offering plan, resulting in numerous construction defects. However, the violation sound in breach of contract rather than tort (Gallup v Summerset Homes, LLC, 82 AD3d 1658 [4th Dept 2011]). A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated. This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract. 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 [2nd Dept 2008] [internal quotation marks and citation omitted]), the Board has no viable negligence cause of action against the Caliendo 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 allege facts showing that the Caliendo Architect defendants owed a legal duty to the unit owners, (see e.g. Friedman v Anderson, 23 AD3d 163, 164 [1st Dept 2005]).

The Caliendo Architect defendants seek dismissal of the sixth cause of action against them for professional malpractice based on the condominium unit owners lack privity of contract with them and on the basis that the claims are preempted by the Martin Act (see General Business Law §§ 352, 352—e). As previously indicated, the Caliendo Architect defendants claim of lack of privity must fail due to their failure to annex their contracts with the sponsor defendants and their failure to annex a complete and properly authenticated copy of the [*6]condominium offering plan.

The Martin Act prohibits a broad range of fraudulent and deceitful conduct in the advertisement, distribution, exchange, transfer, sale, and purchase of securities, including securities representing participation interests in condominium and cooperative apartment buildings (Caboara v Babylon Cove Dev., LLC, 54 AD3d 79, 81 [2nd Dept 2008]; see Kralik v 239 E. 79th St. Owners Corp., 5 NY3d 54, 58 [2005]). The Attorney General bears sole responsibility for implementing and enforcing the Martin Act (Kralik v 239 E. 79th St. Owners Corp., 5 NY3d at 58.

Here, the Caliendo Architect defendants failed to demonstrate that the causes of action asserted against them for professional malpractice rest entirely on alleged omissions from filings required by the Martin Act and the Attorney General's implementing regulations (Caboara v Babylon Cove Dev., LLC, 82 AD3d 1141, 1143 [2nd Dept 2011]).

The eighth cause of action is for fraud and negligent misrepresentation against the Caliendo Architect defendants. The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception and injury (Ross v DeLorenzo, 28 AD3d 631, 636 [2nd Dept 2006]). A cause of action based on negligent misrepresentation requires proof that a defendant had a duty to use reasonable care to impart correct information due to a special relationship existing between the parties, that the information was false, and that a plaintiff reasonably relied on the information (Fresh Direct v Blue Martini Software, 7 AD3d 487, 489 [2nd Dept 2004]).

The complaint alleges that the Caliendo Architect defendants affirmatively misrepresented, as part of the offering plan, a material fact about the condominium. In particular, the Caliendo Architect defendants represented, among other things, that the building would be constructed according to specific standards called for by the New York City Building Code and they knew that the representations were false and misleading when made. The Board adequately plead a cause of action for fraud and negligent representation based on these alleged facts. Furthermore, Gerald's affidavit does not conclusively establish that any material fact alleged by the Board in the cause of action for fraud and negligent misrepresentation is not a fact at all or that no significant dispute exists regarding it (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

Accordingly, the Caliendo Architect defendants motion to dismiss all causes of action asserted against them is granted only as to the fifth cause of action for negligence and denied as to all other causes of action.

The Sponsor Defendants Motion

The sponsor defendants have jointly moved pursuant to CPLR 7506 for an order directing the Board to arbitrate its claims and dismissing the complaint. They have also moved, in the alternative, to dismiss all or some of the claims asserted against them pursuant to CPLR 3013, 3016, and 3211(a)(3) and (7) asserting various grounds.

They submitted an affirmation of their attorney, Steven A.Weg (hereinafter Weg) and three annexed exhibits labeled A through C. Exhibit A is the instant summons with notice and verified complaint. Exhibit B is described as a copy of a purchase agreement. Exhibit C is described in the first footnote of Weg's affirmation as a printout from the New York State Attorney General (NYSAG) web site which shows the date of filing of the offering plan. [*7]

Weg's affirmation demonstrates no personal knowledge of the facts alleged in the complaint or in his affirmation. It therefore has no evidentiary value (Feratovic v Lun Wah, Inc., 284 AD2d 368, 369 [2nd Dept 2001]). "The affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as a vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form', e.g. documents, transcripts" (Worldwide Asset Purchasing, LLC v Karafotias, 9 Misc 3d 390 [NY City CivCt.,2005] citing Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Weg describes exhibit B as a copy of the purchase agreement but offers no explanation of the basis of his knowledge. The exhibit is not of undisputed authenticity and is not a self authenticating. It is therefore disregarded (Pasquaretto v Long Island University, 106 AD3d 794, 795 [2nd Dept 2013]).

The affirmation of the sponsor defendants' counsel sets forth the legal arguments for various aspects of their motion to dismiss the complaint. However, the arguments advanced by counsel do not address all the items of relief requested in the notice of motion. Accordingly, the court will address the motion in the order that they are addressed in counsel's affirmation beginning with the motion to compel arbitration. The court will not address the relief requested in the notice of motion which is unsupported by any legal argument (see generally CPLR 2214).

Generally, under New York statutory and case law, a court may address three threshold questions on a motion to compel or to stay arbitration: (1) whether the parties made a valid agreement to arbitrate; (2) if so, whether the agreement has been complied with; and (3) whether the claim sought to be arbitrated would be time-barred if it were asserted in State court (Town of Orangetown v Rockland County Policemen's Benevolent Ass'n, 105 AD3d 861 [2nd 2013]).

The sponsor defendants base their motion for an order compelling arbitration on the assertion that the individual condominium unit owners, by purchasing their respective units, necessarily accepted the offering plan which contains the clause compelling arbitration. They contend that the Board, as the representative of the individual unit owners, is necessarily bound by that clause. The sponsor defendants, however, did not annex the purchase agreement of any individual purchaser of any condominium unit. Instead, they submit Weg's affirmation and his unsupported assertions that exhibit B is a typical form purchase agreement.

Based on their argument, however, there can be no dispute that the Board, as a representative entity, is not a signatory to any agreement to arbitrate with the sponsor defendants. Consequently, the motion to dismiss the complaint and compel the Board to arbitrate must be denied (see Belzberg v Verus Investments Holdings Inc., —- N.E.2d ——, 2013 WL 5637775 [2013]).

As to the individually named defendants, the complaint describes Caton as a limited liability partnership and the sponsor and developer of the offering plan related to subject condominium. Parkside is described as a limited liability company and the general partner of Caton. Rubinstein and Rosen are described principals of Parkside. The Board refers to them collectively as the sponsor defendants. "A member of a limited liability company cannot be held liable for the company's obligations by virtue of his [or her] status as a member thereof' " (Matias v Mondo Props. LLC, 43 AD3d 367, 367-368 [1st Dept 2007], quoting Retropolis, Inc. v 14th St. Dev. LLC, 17 AD3d 209, 210 [1st Dept 2005]; see also Limited Liability Company Law [*8]§§ 609, 610). However, a party may seek to hold a member of an LLC individually liable despite this statutory proscription by application of the doctrine of piercing the corporate veil (see Matias v Mondo Props. LLC, 43 AD3d 367 [1st Dept 2007]; Retropolis, Inc. v 14th St. Dev. LLC, 17 AD3d 209 [1st Dept 2005]). In order to state a viable cause of action under the doctrine of piercing the corporate veil, the "plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation [or LLC] and abused the privilege of doing business in the corporate [or LLC] form to perpetrate a wrong or injustice' " (East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 16 NY3d 775, 776 [2011], quoting Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 142 [1993]). Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to LLC formalities, inadequate capitalization, commingling of assets, and the personal use of LLC funds (see East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 127 [2nd Dept 2009], affd 16 NY3d 775 [2011]).

The sponsor defendants seek dismissal of all claims against Parkside, Rubinstein and Rosen on the discrete ground that there are no allegations of fact in the complaint which permit the piercing of the Caton's corporate veil to attach liability against these defendants. They also contend that the grouping of the sponsor and its principals in all the allegations of fact of the complaint violates the pleading requirements of CPLR 3013 and provides another discrete ground for dismissal of the complaint as against these defendants.

A plaintiff seeking to "pierce the corporate veil" to impose liability on corporation's owners must demonstrate that a court in equity should intervene because the owners exercised complete domination over corporation in the transaction at issue and, in doing so, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that resulted in injury to the plaintiff (East Hampton Union Free School Dist. v Sandpebble Builders, Inc., 66 AD3d 122-126 [2nd 2009]).

Even under the liberal notice pleading requirements of CPLR 3013, a complaint still must allege, inter alia, the material elements of each cause of action asserted. Conduct constituting an abuse of the privilege of doing business in the corporate form is a material element of any cause of action seeking to hold an owner personally liable for the actions of his or her corporation under the doctrine of piercing the corporate veil. Here, nothing in the complaint asserts or suggests that Parkside, Rubinstein or Rosen acted other than within their capacities as agents or principals of Caton, or that any one of them failed to respect the separate legal existence of Caton, or that anyone one of them treated Caton's assets as their own, or that anyone of then undercapitalized Caton, or did not respect corporate formalities, or, in any other way, abused the privilege of doing business in the corporate form (East Hampton Union Free School Dist. v Sandpebble Builders, Inc., 66 AD3d at 127).

Accordingly, inasmuch as the complaint fails to state a cause of action as against Parkside, Rubinstein or Rosen under the doctrine of piercing the corporate veil, the sponsor defendants' motion to dismiss the complaint as against these parties pursuant to CPLR 3013 and 3211(a)(7) is granted.

The sponsor defendants seek dismissal of the fifth, seventh and eleventh cause of action as duplicative of the first cause of action. The fifth and eleventh cause of action are dismissed [*9]for the same reasons that the fifth cause of action it is dismissed against the Caliendo Architect defendants. The allegations of negligence appearing in the complaint are based on their alleged failure to exercise reasonable care and skill in the oversight of the construction of the units, contrary to the offering plan, resulting in numerous construction defects. However, the violation sound in breach of contract rather than tort (Gallup v Summerset Homes, LLC, 82 AD3d 1658 [4th Dept 2011]). A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated. This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract. The negligence claims are unsustainable because the complaint does not allege facts showing that the sponsor defendants owed a legal duty to the unit owners, (see e.g. Friedman v Anderson, 23 AD3d 163, 164 [1st Dept 2005]).

A cause of action is duplicative if it arises from the same facts and does not seek distinct and different damages (Ofman v Katz, 89 AD3d 909, 911 [2nd Dept 2011]). The seventh cause of action is for fraud and negligent misrepresentation. Contrary to the sponsor defendants contention, the Board has adequately plead a cause of action for fraud and negligent representation in conformity with CPLR 3016. Furthermore, those causes of action arise from different facts than the cause of action for breach of contract. Therefore, the sponsor defendants motion to dismiss the seventh cause of action as duplicative of the breach of contract claim is denied.

The sponsor defendants seek dismissal of the seventh cause of action on the discrete ground that the Board could not have relied on any statements by them. They contend that the 21st paragraph of the purchase agreement annexed to their motion supports this position. That paragraph states that the purchaser acknowledges that they have not relied on any representation made by the sponsor defendants. However, as previously explained, the annexed purchase agreement is disregarded because it is incomplete, it is not of undisputed authenticity and is not self authenticating (Pasquaretto v Long Island University, 106 AD3d 794, 795 [2nd Dept 2013]).

The ninth cause of action alleges violations of General Business Law § 349. The sponsor defendants seek dismissal of the ninth cause of action based on the Board's lack of standing due to the Martin Act and based on the failure to plead an essential element of the claim, namely, a consumer oriented act or practice. The Martin Act prohibits a broad range of fraudulent and deceitful conduct in the advertisement, distribution, exchange, transfer, sale, and purchase of securities, including securities representing participation interests in condominium and cooperative apartment buildings (Caboara v Babylon Cove Dev., LLC, 54 AD3d 79, 81 [2nd Dept 2008]; see Kralik v 239 E. 79th St. Owners Corp., 5 NY3d 54, 58 [2005]). The Attorney General bears sole responsibility for implementing and enforcing the Martin Act (Kralik v 239 E. 79th St. Owners Corp., 5 NY3d at 58).

Here, the sponsor defendants failed to demonstrate that the causes of action asserted against them for violations of General Business Law § 349 rest entirely on alleged omissions from filings required by the Martin Act and the Attorney General's implementing regulations (Caboara v Babylon Cove Dev., LLC, 82 AD3d 1141, 1143 [2nd Dept 2011]).

General Business Law §§ 349 and 350 were enacted to safeguard the "vast multitude which includes the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions" (Guggenheimer v [*10]Ginzburg, 43 NY2d 268, 273 [1977]). In order to state a cause of action under the General Business Law the plaintiff must allege (1) that the act, practice or advertisement was consumer-oriented, (2) that the act, practice or advertisement was misleading, and (3) that the plaintiff was injured as a result of the deceptive practice, act or advertisement. The consumer-oriented prong of the factors requires that the action have a broad impact on consumers at large. A breach of a private contract affecting no one but the parties to the contract, whether that breach be negligent or intentional, is not an act or practice affecting the public interest (Genesco Entertainment, a Div. of Lymutt Industries, Inc. v Koch, 593 FSupp.743 [1984]).

There is a split in the Appellate Departments as to whether sales of condominiums within a development meet the "consumer" threshold (compare Quail Ridge Association v Chemical Bank, 162 AD2d 917 [3rd Dept 1990]; Thompkins v Parkchester Apartments Co., 271 AD2d 311 [1st Dept 2000] with Gallup v Summerset Homes, LLC, 82 AD3d 1658 [2nd Dept 2011]; Board of Mgrs. Of Bayberry Greens Condominium v Bayberry Greens Assoc., 174 AD2d 595 [2nd Dept 1991]); Breakwaters Townhomes Assoc. of Buffalo, Inc. v Breakwaters of Buffalo, Inc., 207 AD2d 963 [4th Dept.1994]). As the Court's esteemed colleague so noted, "this Court is bound to follow the controlling decisions of the Appellate Division, Second Department" (Hamlet on Olde Oyster Bay Home Owners Association, Inc., v. Holiday Organizations, Inc., 12 Misc 3d 1182(A) [Sup Ct, Nassau County 2006] citing 28 NY Jur 2d Courts and Judges § 221). Therefore, contrary to the contention of the sponsor defendants, the Board has sufficiently plead a claim for violations of General Business Law § 349.

Apart from the unsuccessful argument that the complaint should be dismissed because the entire matter is subject to compulsory arbitration, the sponsor defendants have made no additional arguments supporting dismissal of the first, second, third, fourth, twelfth and thirteenth cause of action. Therefore, those causes of action survive.

CONCLUSION

The Caliendo Architect defendants' motion to dismiss the complaint is granted as to the fifth cause of action and denied as to all other causes of action and cross-claims asserted against them.

The sponsor defendants' motion to dismiss the complaint and compel arbitration is denied.

The sponsor defendants' motion to dismiss the complaint as against defendants Parkside, Rubinstein and Rosen is granted.

The sponsor defendants' motion to dismiss the first, second, third, fourth, seventh, ninth, twelfth and thirteenth cause of action is denied.

The sponsor defendants' motion to dismiss the fifth and eleventh cause of action is granted.

All defendants are directed to file and serve their respective answers to the complaint on or before January 10, 2014.