Plaintiff Board of Managers of 550 Grand Street Condominium (plaintiff) commenced this action on behalf of the unit owners to recover compensatory and punitive damages allegedly sustained as a result of purported defects in the renovation a four-storey, mixed-use walk-up building at 550 Grand Street in the Williamsburg section of Brooklyn (the building). Its first amended complaint, dated Aug. 27, 2013 (the complaint), asserts claims for, inter alia, breach of express and implied warranties, negligent construction/supervision, fraud/misrepresentation, violation of General Business Law §§ 349-350, breach of contract, negligence, and breach of contract/third-party beneficiary (the second, third, fourth, fifth, sixth, seventh, eighth, and tenth causes of action, respectively). The complaint named as defendants the sponsor 550 Grand (the sponsor); the developer EcoRise Development LLC (the developer); the contractor Eco-Build Construction, formerly known as L-Line Enterprises, Inc. (the contractor); the sponsor's managing partner and general manager Schlegel LLC; and the architect and engineer Ghattas Engineering PLLC, formerly known as Duke + Ghattas Associates LLC (the architect); and the sponsor's members Michael T. Schlegel and Cynthia A. Schlegel (the Schlegels), together Timothy Phillips (Phillips). The Schlegels were also the members of the developer and Schlegel LLC, whereas Philips was the contractor's principal and founding member. The sponsor, the developer, the contractor, Schlegel LLC, and the Schlegels (collectively, the Schlegel defendants) move, pre-answer, for an order, pursuant to CPLR 3211 (a) (1), (3), and (7), dismissing certain causes of actions as against some or all of them, as applicable, and to dismiss the action in its entirety against Schlegel LLC and each of the Schlegels (Seq. No. 1). The architect moves, pre-answer, for an order, pursuant to CPLR 3211 (a) (1), (5), and (7), dismissing the complaint against it (Seq. No. 2). Plaintiff opposes both motions.

The building's six apartments and one commercial space in the building were sold under a condominium offering plan (the offering plan) that was submitted by the sponsor and accepted for filing by the Attorney General's office on July 11, 2008. The offering plan (at pages 7, 23, 51, and 78) included representations by the sponsor that it would renovate the building substantially in accordance with the plans and specifications set forth in the architect's report, and that it applied for a J-51 tax abatement. Additionally, the offering plan (as part of Exhibit J) appended "Certification by Sponsor and Sponsor's Principals," dated June 26, 2008, executed by Michael Schlegel and Phillips individually, and by Cynthia Schlegel both individually and on the sponsor's behalf. The certification recited that each attesting party — after reading the entire offering plan and investigating the facts set forth in the offering plan and the underlying facts — represented that it omitted no [*2]material fact, contained no untrue statement of a material fact, contained no fraud, deception, or concealment, and contained no representation or statement which was false where the certifying party either knew the truth, or with reasonable effort could have known the truth, or made no reasonable effort to ascertain the truth. The certification warned in a paragraph appearing immediately above the signature line that it was made under penalty of perjury for the benefit of all persons to whom the offer was made, and that violations were subject to the civil and criminal penalties of the General Business Law and Penal Law, as required by the Attorney General's regulation at 13 NYCRR 20.4 (b).

The offering plan included the architect's report, entitled the "Description of Property and Specifications," dated Jan. 18, 2008, as amended May 2, 2008, regarding the condition of the building (the architect's report). The architect provided a "Certification by Sponsor's Engineer" (executed by its principal Adib Z. Ghattas, P.E., and annexed to the offering plan as Exhibit K) "for the benefit of all persons to whom this offer [of units] was made." Mr. Ghattas certified that the architect prepared "building plans and specifications approved by the [New York City] Building Department in September . . . 2007 and prepared [the architect's report], a copy of which is intended to be incorporated into the Offering Plan, so that prospective purchasers may rely [on it]." Mr. Ghattas further certified that he read the architect's report in its entirety and investigated with due diligence both the facts stated in it and the facts on which it was based, and that it accurately, truthfully, and completely described the building on completion of construction, assuming that construction was performed in accordance with its plans and specifications. The architect's certification, however, warned that "[t]his statement is not intended as a guarantee or warranty of the physical condition of the property."

Units in the building were sold under a purchase agreement in the form annexed to the offering plan as Exhibit A (the purchase agreement), which incorporated the offering plan. The sponsor covenanted (in § 12 of the purchase agreement) that the construction of the building, units, and materials, equipment and fixtures installed therein is substantially in accordance with the offering plan and the architect's report. The purchase agreement (in § 15 at 10) contained a sunset provision whereby written notice of defects had to be given by a date certain in order to invoke the sponsor's obligations to cure. The purchase agreement (in ¶ 15 at 9-10) also included a purchaser's acknowledgment, which survived the closing, that he or she "has not relied upon any architect's plans, . . . including . . . any relating to the description or physical condition of . . . the Building or the Unit. . . ." The offering plan, in turn, stated (in ¶ 15 at 55) that the architect's statement to the "Sponsor that the Building has been completed substantially in accordance with the [architect's] Plans and Specifications * * * shall neither constitute a representation by [the architect] to the Unit Owners or to the Board of Managers nor give rise to any claim by any Unit Owner or by the Board of Managers against the Sponsor's Architect with respect to completion of construction or defects therein."

The offering plan was amended twice, once in 2009 and once in 2010. The first amendment announced that the plan went effective on Feb. 5, 2009, when the purchase agreement for the building's first unit was executed and delivered. The second amendment advised, among other things, that (1) a final certificate of occupancy, dated Apr. 6, 2009, had been issued; (2) a declaration of condominium was filed on Apr. 17, 2009; (3) the first closing was consummated on Apr. 25, 2009; and (4) three of the six residential units had been sold. Each amendment recited that the [*3]remainder of the offering plan, except for the changes set forth therein, stayed the same.

The complaint alleges (in ¶ 44) that the building suffered, and continues to suffer, from substantial design and construction defects, inadequate and negligent workmanship, missing or defective materials, and gross deviations from the architect's report. The building defects include (according to ¶ 47) "water intrusion, mold infestation, foundation cracking, floor buckling, fire-safety issues, bulging and saturation in load bearing walls." The building suffered, among other mishaps, a burst pipe in Jan. 2011, a partial collapse of the drainage system and a light well ^[FN1] in June 2012, and a roof failure in May 2013 (Complaint ¶ 2). Plaintiff's hired consultants discovered many significant construction deficiencies, sub-standard conditions, and instances of property damage, either resulting from design defects or from incomplete or inadequate workmanship (¶¶ 48-51).

Initially, the Schlegel defendants and the architect separately contend that all claims against them are barred by documentary evidence: the offering plan, the purchase agreements, and, in the case of Schlegel LLC, its operating agreement. A motion to dismiss under CPLR 3211 (a) (1) on the grounds that a claim is barred by documentary evidence is granted where the "documentary evidence" completely refutes the plaintiff's factual allegations, conclusively establishing a defense to such claim as a matter of law (see Goseh v Mutual Life Ins. Co., 98 NY2d 314, 326 [2002]). To qualify as "documentary," evidence must be unambiguous and of undisputed authenticity. Whereas a condominium offering plan has been held to constitute "documentary" evidence (see Board of Mgrs. of Park Slope Views Condominium v Park Slope Views, LLC, 39 Misc 3d 1221[A], 2013 WL 1849128, *7, 2013 NY Slip Op 50689[U] [Sup Ct, Kings County 2013]), it is not "conclusive," since plaintiff is challenging the accuracy of the offering plan itself (see Board of Mgrs. of 14 Hope St. Condominium v Hope St. Partners, LLC, 40 Misc 3d 1215[A], 2013 WL 3814672, *3, 2013 NY Slip Op 51201[U] Park Slope, 2013 WL 1849128, *7).

The Schlegel defendants next contend that Schlegel LLC does not belong in the case. They assert that Schlegel LLC has been named herein on account of a typographical error by the sponsor's attorney; that is, a draft condominium declaration, as annexed to the offering plan, incorrectly named Schlegel LLC as the sponsor. They point out that a final condominium declaration, as filed with the Office of the City Register, correctly named 550 Grand St LLC as the sponsor and that the operating agreement for Schlegel LLC restricted its activities to other properties not involving this building. In opposition, plaintiff, by affidavit of its board member Alana Blahoski, maintains (in ¶ 16) that Schlegel LLC was part of the Schlegels' corporate empire and that the condominium's bank records reflected that Michael Schlegel had transferred funds to and from various other accounts of his and those of his wife Cynthia and Schlegel LLC. More specifically, Ms. Blahoski cites to a money transfer (transaction #00983766312) between the condominium and Schlegel LLC. Although the Court accepts the Schlegel defendants' innocent explanation for the erroneous naming of Schlegels LLC as the sponsor in the draft condominium declaration, the Court notes that Michael Schlegel has proffered no affidavit in rebuttal to Ms. Blahoski's contention. Their defense counsel pooh-poohs Ms. Blahoski's affidavit as ambiguous and lacking in documentary support, while insisting that the [*4]generic language in the operating agreement of Schlegel LLC beats her fairly specific affidavit. The Court concludes that the Schlegel defendants and the architect have failed to meet their heavy burden under CPLR 3211 (a) (1), and those branches of their respective motions are denied (see Board of Mgrs. of Marke Gardens Condominium v 240/242 Franklin Ave., LLC, 71 AD3d 935, 936 [2d Dept 2010]).

As an additional basis for dismissal, the Schlegel defendants cite to, but do not otherwise discuss, CPLR 3211 (a) (3), which permits dismissal in the instance where the plaintiff lacks legal capacity to sue. Real Property Law § 339-dd permits a condominium board of managers to assert on behalf of two or more unit owners "any cause of action relating to the common elements or more than one unit." The complaint (in ¶¶ 44, 47, 71-97) alleges numerous defects affecting the building's common areas, thus satisfying the commonality elements required by the statute. Hence, the branch of the Schlegel defendants' motion for dismissal under CPLR 3211 (a) (3) is also denied (see Residential Bd. of Managers of Zeckendorf Towers v Union Square-14th St. Assoc., 190 AD2d 636, 637 [1st Dept 1993]).

The architect moves for dismissal of the contract and negligence claims against it (the seventh and eighth causes of action) as time-barred. CPLR 214 (6) imposes a three-year statute of limitations for professional malpractice (with certain exceptions not applicable here), "regardless of whether the underlying theory is based in contract or tort." A cause of action to recover damages against an architect for professional malpractice accrues upon the work completion and the resulting termination of the architect's professional relationship with its client (see Vlahakis v Belcom Dev., LLC, 86 AD3d 567, 568 [2d Dept 2011]). A client's professional malpractice claim accrues when its architect completes performing significant, non-ministerial contractual duties (see Sendar Dev. Co. v CMA Design Studio P.C., 68 AD3d 500, 503 [2d Dept 2009]). For example, if the architect is contractually required to obtain a certificate of occupancy, the date of the certificate's issuance is the end point of the client's professional relationship with its architect (see Frank v Mazs Group, 30 AD3d 369, 370 [2d Dept 2006]). It is uncontested that this action was commenced on June 7, 2013, which was more than three years after the final certificate of occupancy was issued on Apr. 6, 2009 (Complaint, ¶ 25). Thus, the architect has sustained its initial burden of demonstrating that the contract and negligence claims against it are time-barred (see Regency Club at Wallkill, LLC v Appel Design Group, P.A., 112 AD3d 603, 607 [2d Dept 2013] Willis Ave. Dev., LLC v Block 3400 Constr. Corp., 42 Misc 3d 1223[A], 2014 WL 590211, *2-3, 2014 NY Slip Op 50185[U] [Sup Ct, Kings County 2014]).

In opposition, plaintiff proffers an affidavit of Board member Naomi Azuma, asserting (in ¶ 12) that "the Unit Owners were informed by the Sponsor that [the architect] bore [but failed to fulfill its] responsibility for obtaining the J-51 tax exemption for the Building." Putting aside the obvious hearsay nature of Ms. Azuma's affidavit, it contradicts plaintiff's complaint (¶¶ 15, 34, 138, 180) and the offering plan (¶ 10 at 7; ¶ E at 23; page 78), which placed responsibility for applying for the tax abatement exclusively on the sponsor.^[FN2] Ms. Azuma's generalized, unsubstantiated [*5]affidavit alleging that the architect was responsible for applying for a J-51 tax abatement is insufficient to rebut the architect's prima facie showing (see Seymour v New York State Elec. & Gas Corp., 215 AD2d 971, 972 [3d Dept 1995]).

The CPLR 3211 (a) (7) Defense of Failure to State a Cause of Action

A motion to dismiss under CPLR 3211 (a) (7) for failure to state a cause of action may be granted "when the allegations and inferences do not fit within any cognizable legal theory" (Nadal v Jaramillo, 102 AD3d 843, 844 [2d Dept 2013]). The court "must accept the allegations in the complaint as true and accord the plaintiff every possible favorable inference from them" (id.). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). In assessing a motion under CPLR 3211 (a) (7), a court may freely consider a plaintiff's affidavits to remedy any defects in the complaint. As to a defendant's affidavits, they will almost never mandate dismissal under CPLR 3211, unless they establish conclusively that the plaintiff has no claim (see Moreno v Future Care Health Servs., Inc., 2014 WL 1236815, *12-13, 2014 NY Slip Op 50449[U] [Sup Ct, Kings County 2014]).

1.Claims Against the Sponsor 550 Grand LLC

Breach of Express and Implied Warranties (Second and Third Causes of Action)

For its second and third causes of action, the complaint alleges (in ¶¶ 9, 143, and 152) that the sponsor breached its express and implied obligations to "diligently, expeditiously and at [its] own cost, complete the construction of the Units and Common Elements substantially in accordance with the plans and specifications described [in the offering plan]." The sponsor challenges the validity of the warranty claims on the principal ground that these claims are duplicative of the contract claim. The Court finds the warranty claims (the second and third causes of action) and the contract claim (the first cause of action) to be legally identical. To be sure, the complaint throws in phrases such as "express warranty" and "implied warranty" when describing the sponsor's misconduct (Complaint [*6]¶¶ 130, 133, 136, 152, 156).^[FN3] The presence, however, of a few conclusory legal terms does not insulate the warranty claims from dismissal as essentially a redundant repleading of the contract claim (see Board of Mgrs. of Woodpoint Plaza Condominium v Woodpoint Plaza LLC, 24 Misc 3d 1233[A], 2009 WL 2432346, *6, 2009 NY Slip Op 51715[U] [Sup Ct, Kings County 2009]).^[FN4]

Negligent Construction/Supervision (Fourth Cause of Action)

In a variation on the theme, the complaint alleges (in ¶¶ 163-164 and 166-167) that the sponsor breached its duty to construct, supervise, and manage the building. Here, the complaint (in ¶ 175) adds punitive damages to the prayer of relief. Yet, a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract 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 (see Board of Mgrs. of Riverview Condominium III v Schorr Bros. Dev. Corp., 182 AD2d 664, 666 [2d Dept 1992]). Plaintiff has failed to establish that the sponsor owed the unit owners a legal duty of care that was independent of its contractual duty that arose from its purchase agreements with the unit owners (id.). Tacking on an additional request for punitive damages to this cause of action does not change the fundamental fact that it is duplicative of the contract claim (see Metro. Life Ins. Co. v Noble Lowndes Intl., Inc., 84 NY2d 430, 435 [1994]). Accordingly, this claim is also dismissed.

[*7]Common-Law Fraud, Deceit, and Misrepresentation (Fifth Cause of Action)

The complaint's common-law fraud claim arises, for the most part, out of the misrepresentations and omissions of the contents of the purchase agreements and the offering plan. The fraud claim is not preempted by the Martin Act ^[FN5] because the complaint alleges affirmative misrepresentations, rather than solely omissions (see Caboara v Babylon Cove Dev., LLC, 82 AD3d 1141, 1142 [2d Dept 2011] 14 Hope St. Condominium, 2013 WL 3814672, *4; see also Sutton Apts. Corp. v Bradhurst 100 Dev., LLC, 107 AD3d 646, 648 [1st Dept 2013] Board of Mgrs. of Baxter St. Condominium v Baxter St. Dev., LLC, 2013 NY Slip Op 32742[U] [Sup Ct, NY County 2013]). The fraud claim meets the particularity requirements of CPLR 3016 (b),^[FN6] considering that the facts suffice to permit a reasonable inference of the alleged misconduct (see Eurycleia Partners v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]).

However, the fraud claim against the sponsor fails as a matter of law because it is subsumed in the contract claim. A cause of action to recover damages for fraud does not lie where the only fraud asserted relates to an alleged breach of contract (see Stangel v Chen, 74 AD3d 1050, 1052 [2d Dept 2010]). In other words, a fraud claim fails when an alleged breach of contractual duties and the supporting allegations do not concern representations that are collateral or extraneous to the terms of the parties' agreement (see Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d 755, 757 [2d Dept 2009]). Here, the complaint limits the universe of misrepresentations and omissions to only those that are inconsistent with the express terms of the purchase agreements.^[FN7] It also lacks supporting allegations that are collateral or extraneous to their express terms. Plaintiff has not alleged, much less proved, the existence of any misrepresentations or omissions by the sponsor that were collateral or extraneous to the express terms of the purchase agreements as incorporated into the offering plan. As noted, plaintiff has not alleged or identified what legal duty the sponsor owed to the prospective purchasers, other than the duty the sponsor owed them under the purchase agreements and the offering plan (see Current Med. Directions, LLC v Salomone, 26 Misc 3d 1229[A], 2010 WL 724686, *8, 2010 NY Slip Op 50315[U] [Sup Ct, NY County 2010]).

It is true that "where the plaintiff pleads that it was induced to enter into a contract based on the defendant's promise to perform and that the defendant, at the time it made the promise, had a preconceived and undisclosed intention of not performing' the contract, such a promise constitutes a representation of present fact collateral to the terms of the contract and is actionable in fraud" [*8](Manas v VMS Assoc., 53 AD3d 451, 453 [1st Dept 2008]). But here the complaint merely alleges (in ¶¶ 40, 190, 193) that the offering plan contained misrepresentations and omissions to induce prospective purchasers to acquire the units in the building. It does not allege than that the sponsor had a "preconceived and undisclosed intention of not performing" under the purchase agreements (see Manas, 53 AD3d at 454).^[FN8] It is of no help to plaintiff that the complaint alleges that false statements were made "outside the [offering] plan after [the] Units were purchased" (¶ 180 [emphasis added]). This allegation is not fleshed out by some concrete examples or affidavits, but is buried in a mass of the complaint's repetitive allegations about the offering plan's misrepresentations and omissions.

In substance, therefore, the contract claim and the fraud claim both allege that the sponsor failed to deliver to plaintiff and the unit owners a well-constructed condominium with defect-free apartments/common areas and a J-51 tax abatement. The fraud alleged against the sponsor is based on the same facts that underlie the contract claim, is not collateral to the contract, and does not call for damages that otherwise would be unrecoverable under a contract theory (see Laurel Hill Advisory Group, LLC v American Stock Transfer & Trust Co., 112 AD3d 486, 487[1st Dept 2013]). If anything, a fraud claim demands a higher burden of proof than a contract claim (see Jo Ann Homes at Bellmore, Inc. v Dworetz, 25 NY2d 112, 121 [1969]). Hence, the fraud claim against the sponsor is dismissed as duplicative of the contract claim (see Kestenbaum v Suroff, 268 AD2d 560, 561 [2d Dept 2000] 14 Hope St. Condominium, 2013 WL 3814672, *5; Board of Mgrs. of Crest Condominium v City View Gardens Phase II, LLC, 35 Misc 3d 1223 [A], 2012 WL 1660679, *8, 2012 NY Slip Op 508260[U] [Sup Ct, Kings County 2012]).

Deceptive Acts and Practices Under

General Business Law §§ 349-350 (Sixth Cause of Action)

In the sixth cause of action, the complaint alleges (in ¶¶ 201-202) that the sponsor created, [*9]prepared and disseminated "promotional materials, selling brochures and advertisements concerning the Building to consumers," and that the representations contained therein and in the offering plan were false and misleading. Contrary to the sponsor's contention, the Martin Act does not bar claims under General Business Law § 349 or § 350 (see Board of Mgrs. of Bayberry Greens Condominium v Bayberry Greens Assoc., 174 AD2d 595, 596 [2d Dept 1991] Board of Mgrs. of Cobble Hill Condominium v Hicks & Warren, LLC, 14 Misc 3d 1234[A], 2007 WL 556897, *11, 2007 NY Slip Op 50297[U] [Sup Ct, Kings County 2007]).^[FN9] Plaintiff's claims under General Business Law §§ 349-350, if otherwise valid, are not preempted by the Martin Act.

Section 349 (h) provides that any person who has been injured by deceptive acts or practices in the conduct of any business may bring an action in his own name to enjoin such unlawful act or practice (see B.S.L. One Owners Corp. v Key Intl. Mfg., Inc., 225 AD2d 643, 644 [2d Dept 1996]). "To state a claim . . ., a plaintiff must allege that the defendant has engaged in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof. "Whether a representation or an omission, the deceptive practice must be likely to mislead a reasonable consumer acting reasonably under the circumstances," although "[a] deceptive practice . . . need not reach the "level of common-law fraud to be actionable under section 349" (Stutman v Chemical Bank, 95 NY2d 24, 29 [2000] [internal quotation marks omitted]).

False advertising in the conduct of any business is actionable pursuant to § 350, which likewise allows a private right of action (see Solomon v Bell Atlantic Corp., 9 AD3d 49, 52 [1st Dept 2004]). Under § 350, a plaintiff must demonstrate that an advertisement had an impact on consumers at large, was deceptive or misleading in a material way, and resulted in injury. The test is whether the advertisement is likely to mislead a reasonable consumer acting reasonably under the circumstances (see Andre Strishak & Assoc. v Hewlett Packard Co., 300 AD2d 608, 609 [2d Dept 2002]).

Here, the complaint's allegations (in ¶¶ 200-212) of deceptive practices in the advertisement and sale of condominium units are sufficient to state a claim under §§ 349-350 (see 14 Hope St. Condominium, 2013 WL 3814672, *6-7; Board of Managers of Cobble Hill Condominium v Hicks & Warren, 14 Misc 3d 1234[A], 2007 WL 556897, *11-12, 2007 NY Slip Op 50297[U] [Sup Ct, Kings County 2007]). The sponsor, however, contends that plaintiff's claims fall outside the ambit of §§ 349-350 because the presently litigated dispute is unique to the parties at this particular building and does not involve the public at large, citing the First Department's decisions in Sutton Apts. (107 AD3d at 648) and Thompson v Parkchester Apts. Co. (271 AD2d 311, 311-312 [2000]). Plaintiff, in opposition, points out that the Second Department, unlike the First Department, has held that the advertisement and sale of residential apartments is a consumer-oriented transaction within the meaning of §§ 349-350 (see B.S.L. One Owners, 225 AD2d at 644; Bayberry Greens Condominium, 174 AD2d at 596).

The plain import of the complaint is that the sponsor dealt with the unit owners as it did with any one else who desired to purchase space in this seven-unit building by furnishing them with a uniform offering plan. A sale of space in the building was not private in nature or a single-shot transaction. Although only six of the seven units in the building have been sold, the marketing [*10]campaign was still directed to the public at large. Thus, plaintiff has satisfied the threshold test in that the acts of it complains were consumer-oriented in the sense that they affected similarly situated consumers (see B.S.L. One Owners, 225 AD2d at 644; Bayberry Greens Condominium, 174 AD2d at 596; Board of Mgrs. of Caton Ct. Condominium v Caton Dev. LP, 41 Misc 3d 1231[A], 2013 WL 6182944, *10, 2013 NY Slip Op 51951[U] [Sup Ct, Kings County 2013] see also Straaten v 125 Ct. St., NYLJ 1202631188972 [Sup Ct, Kings County, Nov. 25, 2013]).^[FN10]

2.Claims Against the Architect Ghattas Engineering PLLC

The claims against the architect (i.e., contract, negligence, and fraud) largely mirror the insufficient claims against the sponsor; to the extent the claims against the architect sound in professional malpractice, they are untimely as noted above. In addition, these claims fail to state a cause of action. The contract claim, which is based on the architect's description of the building's condition in the architect's plan as included in the offering plan and subsequently incorporated in the purchase agreements, is contradicted by the "no representations" and related disclaimer provisions in the purchase agreement, the offering plan,^[FN11] and the architect's certification (see Board of Mgrs. of Chelsea 19 Condominium v Chelsea 19 Assoc., 73 AD3d 581 [1st Dept 2010]). The complaint pleads no facts indicating that plaintiff or the unit owners were in privity with the architect. The agreement between the architect and the sponsor, dated June 20, 2007, does not reflect an intent that the unit owners be its beneficiaries. Hence, the contract claim against the architect is dismissed (see Sutton Apts., 107 AD3d at 649; Kerusa Co. LLC v W10 Z/515 Real Estate L.P., 50 AD3d 503, 504 [1st Dept 2008] Board of Mgrs. of NV 101 N 5th St. Condominium v Morton, 39 Misc 3d 1212[A], 2013 WL 1629239, *8, 2013 NY Slip Op 50575[U] [Sup Ct, Kings County 2013]).

All of the fraud and related tort claims against the architect arise from the same provisions said to have been breached and seek the same damages, and thus merely duplicate the insufficient contract claim. Equally unavailing is plaintiff's negligent misrepresentation claim alleging that the architect, by virtue of its expertise, owed a special duty to unit purchasers. Although liability for negligent misrepresentation has been imposed on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party, the plaintiff's reliance on the negligent misrepresentation must be justified (see CMMF, LLC v J.P. Morgan Inv. Mgt., Inc., 78 AD3d 562, 656 [1st Dept 2010]). Here, plaintiff's reliance is negated by the provision in the purchase agreement (in § 15 at 9-10) that each unit purchaser has "relied on his [or her] own examination and investigation [of the building and the unit]." Moreover, a cause of action alleging negligent misrepresentation requires the "existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007], reargument denied 8 NY3d 939 [2007]). [*11]Here, the negligent misrepresentation and other tort claims against the architect fail for lack of contractual privity or the functional equivalency of privity (see Sutton Apts., 107 AD3d at 648). Moreover, plaintiff fails to point to any specific actions or inactions on the architect's part that caused the complained-of defects in the building, nor does it offer an expert affidavit to correct this pleading deficiency (see Board of Mgrs. of NV 101 N 5th St. Condominium, 2013 WL 1629239, *10). The architect's motion is granted, and the complaint insofar as asserted against it is dismissed in its entirety (see Board of Mgrs. of One Grand Army Plaza v Seventeen Dev. LLC, 40 Misc 3d 1237[A], 2013 WL 4766515, *5-7, 2013 NY Slip Op 51465[U] [Sup Ct, Kings County 2013]).

3.Claims Against the Sponsor's Principals, Michael and Cynthia Schlegel

The complaint (in ¶ 9) defines the term "Sponsor" to include its sponsor's principals, the Schlegels.^[FN12] By doing so, the complaint generically asserts the same causes of action against the Schlegels as it does against the sponsor 550 Grand LLC. The claims against the Schlegels sound in contract, express and implied warranties, negligent construction/supervision, fraud, and General Business Law §§ 349-350 (the first, second, third, fourth, fifth, and sixth causes of action, respectively). The preceding analysis of these claims against the sponsor applies, mutatis mutandis, to the Schlegels. Thus, the claims grounded in express and implied warranties, negligent construction/supervision, and fraud (the second, third, fourth, and fifth causes of action, respectively) are dismissed. As to the remaining claims against the Schlegels sounding in breach of contract and violation of General Business Law §§ 349-350 (the first and sixth causes of action, respectively), these claims survive because the Schlegels individually executed and delivered the sponsor's certification (see Birnbaum v Yonkers Contr. Co., 272 AD2d 355, 357 [2d Dept 2000] Zanani v Savad, 228 AD2d 584, 585 [2d Dept 1996] Zeckendorf Towers, 190 AD2d at 637-638; 14 Hope St. Condominium, 2013 WL 3814672, *3).

4.Claims Against Schlegel LLC and the Developer EcoRise Development LLC

At the risk of sounding repetitive, the Court notes that the complaint broadly defines the term "Sponsor" to include both Schlegel LLC (an entity owned by the Schlegels) and the developer EcoRise Development LLC. The complaint asserts the same causes of action against Schlegel LLC and the developer as it does against the sponsor, except in one instance where it alleges (in ¶ 114), upon information and belief, that the sponsor converted condominium funds for non-condominium use by using, among other things, bank accounts in the name of each of Schlegel LLC and the developer. A supporting affidavit by Board member Alana Blahoski states (in ¶ 16) that the condominium's bank account reflects a money transfer (transaction #00983766312) between Schlegel LLC and the condominium, as well as another money transfer (transaction #00667769137) between the developer and the condominium. As a Board member, Ms. Blahoski explains (in ¶¶ 15-16 of her affidavit) that "[a]fter the Board began looking into [the] building finances, the Board began to believe that assets and resources of the corporate entities and the Schlegels were commingled and indistinct" and that "Michael Schlegel had transferred funds to and from various other accounts of his and his Cynthia's as well as Defendant Schlegel, LLC's." As a building resident, Ms. Blahoski also observed (in ¶ 7) that "Michael Schlegel, Schlegel LLC, Cynthia Schlegel and EcoRise Development LLC [the developer], . . . and 550 Grand, LLC all had operated [*12]out of the Commercial Unit Space located next door to [her unit] at [the building]." Notwithstanding the allegation of potentially questionable transfers (in ¶ 114 of the complaint) and the supplemental allegations in Ms. Blahoski's affidavit, plaintiff does not have a cause of action against either Schlegel LLC or the developer. The alleged commingling of funds and fraudulent money transfers have nothing to do with plaintiff's case-in-chief that the building and its units are of poor quality. Thus, all claims against Schlegel LLC and the developer are dismissed with leave to amend to replead claims against these entities, as more fully set forth in the decretal paragraphs below (see Philips Intl. Invs., LLC v Pektor, 2012 NY Slip Op 33493[U] [Sup Ct, NY County 2012], renewal denied on other grounds 2013 NY Slip Op 31233[U], affd 2014 NY Slip Op 01700 [1st Dept 2014]).

5.Claims Against the Contractor Eco-Build Construction

As to this defendant, the complaint asserts a contract claim resting upon the allegations (in its tenth cause of action in ¶¶ 247, 252-253) that the unit purchasers qualified as third-party beneficiaries of a contract between the sponsor and the developer. The complaint additionally asserts (in ¶¶ 247-248) that the developer undertook to manage the renovation of the building and breached its contractual obligations by failing to renovate it in accordance with "proper architectural and engineering plans, specifications, practices and techniques, prevailing local standards and in compliance with relevant codes, rules and ordinances."

An ordinary construction contract — i.e., one which does not expressly state that the intention of the contracting parties is to benefit a third party — does not give third parties who contract with the promisee the right to enforce the latter's contract with another, and such third parties are generally considered mere incidental beneficiaries (see Board of Mgrs. of Riverview v Schorr Bros. Dev. Corp., 182 AD2d 664, 665 [2d Dept 1992]). Here, in opposition to plaintiff's allegations that it is a third-party beneficiary of the sponsor's contract with the developer, Michael Schlegel avers (in ¶ 10 of his affidavit, dated Sept. 24, 2013) that there was no written contract between the sponsor and the contractor, "since these entities were related." Mr. Schlegel's blanket denial fails to establish conclusively that plaintiff possesses no contract claim against the contractor, and this cause of action against the contractor survives the motion to dismiss (see Lawrence v Graubard Miller, 11 NY3d 588, 595-596 [2008]).^[FN13]

In Seq. No. 2, it is hereby

ORDERED that the branch of the Schlegel defendants' motion to dismiss plaintiff's express warranty, implied warranty, negligent construction/supervision, and fraud claims against the sponsor 550 Grand Street LLC (the second, third, fourth, and fifth causes of action) is granted, and such [*13]claims against the sponsor 550 Grand Street LLC are dismissed; and it is further

ORDERED that the branch of the Schlegel defendants' motion to dismiss plaintiff's claim for deceptive acts and practices under General Business Law §§ 349-350 against the sponsor 550 Grand Street LLC (the sixth cause of action) is denied; and it is further

ORDERED that the branch of the Schlegel defendants' motion to dismiss plaintiff's claims grounded in express and implied warranties, negligent construction/supervision, and fraud (the second, third, fourth, and fifth causes of action, respectively) against Michael T. Schlegel and Cynthia A. Schlegel is granted, and such claims against these individuals are dismissed; and it is further

ORDERED that the branch of the Schlegel defendants' motion to dismiss the remaining claims against Michael T. Schlegel and Cynthia A. Schlegel sounding in breach of contract and violation of General Business Law §§ 349-350 (the first and sixth causes of action, respectively) is denied; and it is further

ORDERED that the branch of the Schlegel defendants' motion to dismiss plaintiff's claims against Schlegel LLC and EcoRise Development LLC is granted, and all such claims against this entity are dismissed; provided, however, that plaintiff is hereby granted leave to file and serve an amended complaint so as to replead its claims, if any, against either or both of these entities within 20 days after service on plaintiff's counsel of a copy of this order with notice of entry (service of an amended complaint must be accompanied by a blackline against the existing complaint); and it is further

ORDERED that if plaintiff fails to serve and file an amended complaint in conformity herewith within such time, then leave to replead shall be deemed denied without further order of the Court, and the defendants 550 Grand LLC, Eco-Build Construction, Michael T. Schlegel, and Cynthia A. Schlegel shall serve an answer to the existing complaint within 20 days after plaintiff's time to serve and file an amended complaint has expired; and it is further

ORDERED that if plaintiff does serve and file an amended complaint in conformity herewith within such time, then (1) the defendants 550 Grand LLC, Eco-Build Construction, Michael T. Schlegel, and Cynthia A. Schlegel shall serve an answer to the amended complaint, (2) the defendants Schlegel LLC and/or Eco-Build Construction, as applicable, shall either serve an answer or otherwise respond to the amended complaint, in each instance, within 20 days after service of the amended complaint on their counsel, and (3) the defendant Timothy Phillips, who already has answered, shall serve an amended answer to the amended complaint within 20 days after service of the amended complaint on his counsel; and it is further

ORDERED that the branch of the Schlegel defendants' motion to dismiss plaintiff's breach of contract/third-party beneficiary claim (the tenth cause of action) against the contractor Eco-Build Construction is denied; and it is further

ORDERED that the remaining branch of the Schlegel defendants' motion to dismiss the complaint against them on the basis of documentary evidence under CPLR 3211 (a) (1) and for lack of capacity to sue under CPLR 3211 (a) (3) is denied.

In Seq. No. 3, it is hereby

ORDERED that the branch of the architect's motion to dismiss the contract and negligence claims against it (the seventh and eighth causes of action, respectively) as time-barred under CPLR 3211 (a) (5) is granted; and it is further

ORDERED that the branch of the architect's motion to dismiss the fraud, contract, and [*14]negligence claims against it (the fifth, seventh, and eighth causes of action, respectively) for failure to state a cause of action under CPLR 3211 (a) (7) is granted; and it is further

ORDERED that, based on the foregoing, the complaint against the architect is hereby dismissed in its entirety without costs or disbursements, and the action is hereby severed and continued against the remaining defendants; and it is further

ORDERED that the remaining branch of the architect's motion to dismiss the complaint against it on the basis of documentary evidence under CPLR 3211 (a) (1) is denied.

Counsel to the remaining parties are directed to appear for a preliminary conference in Room ____ on _____ __, 2014, at 9:30 a.m.

This constitutes the decision, order, and judgment of the Court.

E N T E R,

J. S. C.