Plaintiff, Thomian Holdings, LLC, owns an Upper West Side condominium apartment unit. Defendant, Cydonia W71, LLC, is the condominium sponsor. Plaintiff purchased the unit from defendant in November 2020.

Plaintiff alleges that defendant did not fully repair or remediate material construction defects within the unit. These defects were not discovered until after closing. Plaintiff claims that defendant has therefore breached the terms of the offering plan (incorporated by reference in the purchase agreement). The offering plan advertised that the condominium units were renovated in accordance with the filed plans, specifications, and applicable laws.

Plaintiff alleges the following deficiencies: (i) defective sound insulation of the walls, ceiling, and flooring between the unit and other units, and between the unit and common areas; (ii) leaky showers causing floor damage; (iii) defective HVAC system; and (iv) improperly installed sub-floors causing flooring to vibrate and squeak (collectively, defects). Defendant took a substantial part in the construction and renovations of the condominium and unit. Accordingly, plaintiff claims that defendant has breached locally acceptable building practices and the purchase agreement.

Plaintiff brought this action in November 2023. The complaint asserts nine causes of action and seeks $1 million in damages (plus attorney fees).

Defendant now moves to dismiss the second through ninth causes of action. In opposing the motion, plaintiff seeks leave to amend should any of its claims be dismissed. Defendant's motion is granted. Plaintiff's application for leave to amend is denied.

Defendant is seeking dismissal of plaintiff's second through ninth causes of action as duplicative of the first cause of action (breach of contract).

Plaintiff claims that defendant breached the warranties in the purchase agreement and offering plan by failing to provide a properly renovated unit at the time of closing, or fixing the unit's deficiencies after their discovery. Defendant argues that this claim is duplicative of plaintiff's breach-of-contract cause of action, because it is based on the same defects and seeks the same damages. This court agrees.

A cause of action based on the same construction defects and seeking identical relief as another cause of action must be dismissed. (See 266 W. 115th St. Condominium v 266 W. 115th St., LLC, 2014 NY Slip Op 33047(U), *3 [Sup Ct, NY County 2014].) The claim is therefore subject to dismissal as duplicative of the breach of contract claim.

In support of its breach of contract cause of action, plaintiff states that defendant "breached the warranties and provisions set forth in the Purchase Agreement, Offering Plan, Declaration, and other Governing Documents and are against public policy." (NYSCEF No. 1 at ¶ 26 [emphasis added].) In support of its breach-of-warranty claim, plaintiff asserts that "[t]he Construction Defects and/or deficiencies breached local and customary standards for construction (or renovations) and/or relevant law or code, which the Sponsor's Warranties cannot exclude." (NYSCEF No. 1 at ¶ 38.) In opposition, plaintiff asserts that the two claims are different—but without identifying any differences. That is not enough.

Plaintiff alleges that defendant was negligent in designing and overseeing the construction of the condominium; and that this alleged negligence caused that construction to be defective and contrary to the Building Code, the offering plan, and industry standards. (NYSCEF No. 1 at ¶ 44.)

Allegations of negligence "based on defects in construction of a condominium sound in breach of contract rather than tort." (Board of Mgrs. of Soho N. 267 W. 124th St. Condominium v NW 124 LLC, 116 AD3d 506, 507 [1st Dept 2014].) Plaintiff has not alleged that defendant's alleged failure to properly design, construct, and supervise the construction of the condominium breached a legal duty independent of the contract. At most, plaintiff alleges that the obligations to design, construct, and supervise are part of defendant's "duty to exercise reasonable care and [*2]skill according to standard practices in their trades." (NYSCEF No. 1 at ¶ 42; see also id. at ¶ 49.) A "claim for negligence is not stated by alleging that a contract was negligently performed or, put another way, an allegation of a duty of care does not transform a breach of contract claim into a tort claim." (266 W. 115th St. Condominium, 2014 NY Slip Op 33047[U], at *3.) And to the extent that plaintiff rests this claim on alleged negligent repairs causing damage to plaintiff's personal property, that allegation is conclusory.

As alleged in the complaint, this claim is based on the same facts as the third cause of action, omitting the design allegations. And plaintiff fully merges the two causes of action in its memorandum in opposition. Accordingly, the fourth cause of action is dismissed for the same reasons as the third.

Plaintiff argues that when the sale of the unit closed, defendant knew or should have known that the representations it made in the offering plan and purchase agreement were untruthful.

Specifically, plaintiff alleges that the following representations are false and misleading: (i) defendant would "at its own cost and expense, and with reasonable diligence, complete the Condominium in accordance with the building plans and specifications and with a quality of construction comparable to the standards currently prevailing in the City of New York," (ii) "[c]orrect defects in the construction of the building and the units therein, or in the installation or operation of any mechanical equipment therein, due to substantially improper workmanship or materials substantially at variance with the architectural plans and specifications," and (iii) "[c]onstruct the building and the units therein, and use materials, equipment and fixtures substantially in accordance with the Offering Plan and the architectural plans and specifications." (NYSCEF No. 1 at ¶ 55.) Plaintiff further claims that to ensure the purchase would proceed, defendant purposefully did not disclose that these representations were untruthful. (NYSCEF No. 1 at ¶¶ 56-67.)

Defendant argues that this claim is duplicative of the first cause of action and that, in any event, plaintiff's allegations (assertedly) do not satisfy CPLR 3016 (b).

Plaintiff argues that this claim is not duplicative because it relies on a tort independent of the contract, namely that "Defendant committed numerous and egregious acts of fraud in public offering documents filed with state agencies." (NYSCEF No. 17 at 8.) This argument is unpersuasive.

Plaintiff's allegations are based entirely on the subject matter of the contract. The fraud claim therefore duplicates a breach-of-contract claim and must be dismissed. (See 20 Pine St. Homeowners Assn. v 20 Pine St. LLC, 109 AD3d 733, 735 [1st Dept 2013] [holding that "[t]he court properly dismissed the fraud claims here" because plaintiffs "failed to allege tortious conduct separate and distinct from their breach of contract claim."]; Board of Mgrs. of Lore Condominium v Gaetano, 2012 NY Slip Op 32654(U), 8 [Sup Ct, NY County 2012] [holding [*3]that "[p]laintiff's fraud claim. . . is duplicative of its breach of contract claim. . . because it is based on the same facts that underlie the contract cause of action, is not collateral to the contract, and does not seek damages that would not be recoverable under a contract measure of damages"] [internal citations and quotation marks omitted].)

Additionally, under CPLR 3016 (b), the circumstances constituting the wrong in a fraud claim must be stated in detail. Plaintiff has not pleaded specific facts that might show that defendant made knowing misrepresentations. Instead, plaintiff claims only that defendant "knew and/or should have known" about the defects prior to plaintiff's purchase of the unit. (NYSCEF No. 1 at ¶ 60.) And plaintiff relies on this generalized allegation to conclude that defendant hid the defects for the sale to proceed. (NYSCEF No. 1 at ¶ 60.) These allegations do not satisfy CPLR 3016 (b). Absent additional detail—which plaintiff does not provide—plaintiff's fraud claim cannot survive. (See 266 W. 115th St. Condominium, 2014 NY Slip Op 33047[U], at *4 ["[I]t is well-settled that general allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support a fraud claim"] [internal citations and quotations omitted)].)

A negligent-misrepresentation claim requires allegations showing the existence of a special relationship of trust or confidence between the parties. (See Fab Industries, Inc. v BNY Financial Corp., 252 AD2d 367, 367 [1st Dept 1998].) Plaintiff's complaint does not plead that a special relationship exists. Absent "allegations sufficient to plead a special relationship of trust or confidence," the negligent-misrepresentation cause of action must be dismissed. (20 Pine St. Homeowners Assoc., 109 AD3d at 735.)

Additionally, under CPLR 3016 (b), the circumstances constituting the wrong in a negligent-misrepresentation claim must be stated in detail. But the allegations supporting plaintiff's claim are no more specific than plaintiff's fraud allegations. This claim is subject to dismissal on that additional and independent ground.

Plaintiff's sixth cause of action claims that defendant violated General Business Law (GBL) § 349.^[FN1] Plaintiff alleges that defendant violated GBL § 349 by advertising the condominium as being "a boutique luxury building with state of the art, high-end construction" (NYSCEF No. 1 at ¶ 72), and that "the renovations are in accordance with applicable codes and substantially in accordance with filed plans and specifications." (NYSCEF No. 1 at ¶ 71.)

To make a claim under General Business Law § 349, a plaintiff must prove that a defendant "is engaging in an act or practice that is deceptive or misleading in a material way," that the plaintiff "has been injured by reason thereof," and that "defendant's acts are directed to consumers." (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, N.A., 85 NY2d 20, 25 [1995] (internal citations omitted).)

In Oswego, the Court held that a plaintiff "need not show that the defendant committed the complained-of acts repeatedly—either to the same plaintiff or to other consumers—but instead must demonstrate that the acts or practices have a broader impact on consumers at large." (Id.) The Court further held that "[p]rivate contract disputes, unique to the parties, for example, would not fall within the ambit of the statute." (Id.; see also Lin v New York Life Ins. Co., 2024 NY Slip Op 50682[U], *3 [Sup Ct, NY County 2024] [dismissing a General Business Law § 349 claim for failure to state a cause of action that asserted, "at most. . . repeated acts of individualized fraud" rather than "conduct that had a broad impact on consumers at large"] [internal citation and quotation omitted].)

This action involves a private transaction and a breach-of-contract dispute. Thus, a GBL § 349 claim does not lie. (See Teller v Bill Hayes, Ltd., 213 AD2d 141, 148 [2d Dept 1995].) The defects plaintiff alleges and the resulting claimed injuries arise from a one-time private transaction between the parties, and concern only plaintiff's unit. (See Sutton Apts. Corp. v Bradhurst 100 Dev. LLC, 107 AD3d 646, 648 [1st Dept 2013] [dismissing claim under General Business Law §§ 349 and 350 for being limited to the parties in the subject building and not involving the public at large].)

That the offering plan and purchase agreement were advertised does not automatically imply that these documents were directed at consumers at large. (See Board of Mgrs. of 250 Bowery Condominium v 250VE LLC, 2018 NY Slip Op 31168[U], *15-16 [Sup Ct, NY County 2018].) Accordingly, plaintiff's failure to show that the alleged defects would impact consumers at large warrants dismissing its GBL 349 violation claim.^[FN2] (See id. [holding that, in regard to General Business Law §§ 349 and 350 violation claims, "[t]o the extent that any of plaintiff's allegations are based on the Offering Plan, those are not actionable as this is a private contract dispute unique to the parties"].)

Plaintiff also cannot satisfy the public-at-large requirement of GBL § 349 by alleging that other unit purchasers in the condominium have made the same complaints of deficiencies. (NYSCEF No. 1 at ¶ 14.) (See Thompson v Parkchester Apts. Co., 271 AD2d 311, 311-312 [1st Dept 2000] ["The presently litigated dispute, involving faulty plumbing and what the individual plaintiffs were told about the condition of the plumbing when they purchased their individual units, is unique to the parties at this particular complex, and thus, does not fall within the ambit of the statute."].) Accordingly, complaints about deficiencies existing in one building, even if stemming from several one-on-one private transactions, cannot support a General Business Law § 349 claim.

Plaintiff next asserts false advertising claims under GBL §§ 350 and 350-A. To state claims under these sections, a plaintiff must plead that the advertisement was misleading in a material way and that it directly resulted in the alleged injury. Like § 349, claims under §§ 350 and 350-A must have a broader impact on consumers at large. (See Scott v Bell Atl. Corp., 282 AD2d 180, 183-184 [1st Dept 2001].)

In support of its GBL 350 and 350-A claim, plaintiff argues that "Defendant is a builder [*4]and an advertiser who will likely build again and advertise his products to the consuming public. The public requires protection from. . . . Defendant falsely advertis[ing] its products in the media and on the Internet," and that "there is little doubt that if not dissuaded, the Defendant will engage in the same conduct again." (NYSCEF No. 17 at 9.) But plaintiff does not make these allegations in its complaint—only in its memorandum of law.

In the complaint itself, plaintiff makes simply the vague allegation that defendant represented that the condominium and its units' "renovations are in accordance with applicable codes and substantially in accordance with filed plans and specifications"; that the condominium "was advertised and marketed as a boutique luxury building with state of the art, high-end construction"; and that these representations were made in "various forms of advertisement and communication to the public, including but not limited to publicly listing the Individual Units for sa[le]." (NYSCEF No. 1 at ¶¶ 71, 72, 74.)

Plaintiff therefore does not plead that defendant falsely advertised the specific defects that allegedly injured plaintiff—a fatal omission. (See Bd. of Mgrs. of 250 Bowery Condominium v 250VE LLC, 2018 NY Slip Op 31168(U), 16-17 [Sup Ct, NY County 2018] ["[E]ven if the statements on the websites and television programming were deceptive, they did not cause plaintiff's alleged injury resulting in damages for the fire sprinkler pipe bursting and other alleged defects."]; Loeb v Architecture Work, P.C., 154 AD3d 616, 617 [1st Dept 2017] ["[E]ven if the statements on Archwork's website were deceptive, they did not cause plaintiff's injury. Rather, plaintiff's alleged injury was a result of specific acts and omissions by the individual defendant, such as failing to provide constructible drawings, re-designing the apartment's windows and doors without authorization, and failing to coordinate the project."].)

And again, plaintiff has not demonstrated that the alleged misrepresentations would impact consumers at large. Accordingly, the seventh cause of action is dismissed under CPLR 3211 (a) (7).

Defendant moves to dismiss this cause of action as duplicative of the first cause of action (breach of contract). Both claims allege the same conduct: defendant's supposed prior knowledge of, and disregard of, the construction defects. Additionally, both causes of action seek the same damages for defendant's alleged failure to notify plaintiff of the defects and failing to remedy them. Plaintiff even directly includes the subject of the covenant of good faith and fair dealing in its breach-of-contract claim. (See NYSCEF No. 1 at ¶ 30.) Plaintiff does not respond to defendant on this matter.

Plaintiff's breach of the covenant of good faith and fair dealing relies on the same purported conduct and seeks the same damages as the breach of conduct claim (first cause of action). (See Parlux Fragrances, LLC v S. Carter Enterprises, LLC, 204 AD3d 72, 91-92 [1st Dept 2022]; Mill Fin., LLC v Gillett, 122 AD3d 98, 99, 104-105 [1st Dept 2014].) Accordingly, the eighth cause of action is dismissed.

Plaintiff seeks to hold defendant liable for attorney fees and disbursements in an estimated amount of $50,000 for allegedly breaching the contract, thus forcing plaintiff to [*5]commence proceedings by filing the complaint. Defendant moves to dismiss this claim for plaintiff's failure to provide a valid basis for entitlement to these fees.

In its memorandum in opposition, plaintiff does not argue why this claim should not be dismissed. Instead, in opposing dismissal of the sixth and seventh causes of action, plaintiff argues for the first time that it is entitled to fees under GBL § 349 (h). But regardless of the asserted basis for awarding fees, a claim for attorney fees is not a freestanding cause of action—only a form of damages awarded on other claims. The ninth cause of action is therefore dismissed.

In opposing defendant's motion, plaintiff requests leave to amend if the court dismisses any of its causes of action. But plaintiff has not submitted a proposed amended pleading, or even demonstrated what sort of amendments it would make to its pleading. The request for leave to amend is denied. (See Parker Waichman LLP v Squier, Knapp & Dunn Communications, Inc., 138 AD3d 570 [1st Dept 2016]; VFS Financing v Insurance Servs. Corp., 111 AD3d 505 [1st Dept 2013]; Dragon Head LLC v Elkman, 102 AD3d 552 [1st Dept 2013].)

Accordingly, it is

ORDERED that defendant's motion to dismiss plaintiff's second through ninth causes of action is granted, and those causes of action are dismissed; and it is further

ORDERED that plaintiff's request for leave to amend is denied; and it is further

ORDERED that plaintiff's first cause of action is severed and shall continue; and it is further

ORDERED that the parties shall appear before this court for a telephonic compliance conference on September 8, 2025.