Rosenzwig v. Borycon-88M, Inc. et al.

Plaintiffs allege that they sustained property damages to their home due during a renovation project that took place between November 2003 and September 2005. Plaintiffs retained Borycon -88M, Inc., owned by defendant Abramov to perform the renovation work. Borycom/Abramov retained our client, Vital Plumbing, Inc. to perform plumbing work at the residence. It was alleged that Vital performed its work in negligent manner, resulting in flooding.

Following the close of discovery, we moved for summary judgment to dismiss plaintiffs’ amended complaint against Vital for breach of contract due to the fact that there is no privity of contract. While the Court found that plaintiffs established all requirements for third-party beneficiary status, it found that Vital made a prima facie showing that the work: (1) was performed with reasonable care and skill; (2) in accordance with the architectural plans provided by plaintiffs to Borycon; and, (3) passed three NYC Department of Building inspections. The Court further noted that plaintiffs’ architect failed to identify the plumbing work as the cause of the water damage. Further, the Court noted that plaintiffs’ sewer cleaning company found that the exterior pipe extending from plaintiffs’ house trap to the city sewer was improperly pitched and was full of rocks and debris. Vital was not contracted to perform, and did not perform, and work on the exterior pipe. Consequently, the Court concluded that plaintiffs failed to raise a triable issue of fact to defeat the motion and dismissed plaintiffs’ claims against Vital.

The Court also dismissed Borycon/Abramov’s cross-claims and third-party claims against Vital. The Court found that Borycon/Abramov were not entitled to contribution because plaintiffs were only seeking damages for purely economic loss. The Court also found that Borycon/Abramov were not entitled to common-law indemnification as they did not show that they were not negligent.