FILED: RICHMOND COUNTY CLERK 04/04/ :57 PM INDEX NO /2016 NYSCEF DOC. NO. 382 RECEIVED NYSCEF: 04/04/2018

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1 SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF RICHMOND X THE TIDES AT CHARLESTON HOMEOWNERS ASSOCIATION, INC., Index No.: /2016 -against- Plaintiff, NOTICE OF ENTRY PC GROUP, LLC, TRADES CONSTRUCTION SERVICES CORP., DESIGN PLUMBING & HEATING SERVICE, INC., PRP HOLDINGS, LLC, A.J. CARUSO ELECTRICAL, INC., RAYMOND HOMES, INC., DUO PLUMBING & HEATING CORP., ISLAND CONCRETE CORP., NY ASPHALT, INC., GREENBERG FARROW ARCHITECTURE, RAMPULLA ASSOCIATES ARCHITECTS, LLP, RAYMOND MASUCCI, MICHAEL PUCCIARELLI, JOSEPH MALVASIO, VERIZON COMMUNICATIONS, INC. (A/K/A VERIZON), CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. (A/K/A CON ED) "ABC SUBCONTRACTORS 1 THROUGH 10", "XYZ ARCHITECTS/ENGINEERS", "JOHN DOE" DOE" 1 THROUGH 10 and "JANE 1 THROUGH 10, said names being fictitious, intended to be persons or entities responsible for the design, construction, repair and/or maintenance of the Association's common elements, "JOHN DOE BOARD MEMBERS" 1 THROUGH 10 and "JANE MEMBERS" DOE BOARD 1 THROUGH 10, said names being fictitious, intended to be persons or entities who served as members of the Board of Directors as appointed by the Declarant or its affiliated entities and/or representatives, Defendants X - â - â -- â â --- â PLEASE TAKE NOTICE that the within Order dated March 23, 2018, of which the within is a true copy and is attached hereto, has been entered with the Richmond County Supreme Couit. 1 of 11

2 Dated: Staten Island, New York April 4, 2018 Yours, etc., By: beft M. shier, Esq. ' Gaines er, LLP s TO: RAYMOND HOMES, INC., RAYMOND MASUCCI MICHAEL JOSEPH PUCCIARELLI MALVASIO 2555 Richmond Avenue, Ste 2 Staten Island, New York (718) Ansell Grimm 2 Aaron, P.C. David J. Byrne, Esq. Attorneys for Plaintiff 140 Grand Street, Ste 501 White Plains, NY PRP Holdings, LLC 2000 South Avenue Staten Island, New York Jones Hirsch Connors and Bull PC Peter S Read, Esq. Duo Plumbing & Heating Corp. One Battery Park Plaza New York, New York Law Office of James J. Toomey James J. Toomey, Esq. Island Concrete Corp. 485 Lexington Ave, 7" F1 New York, New York Harris, King & Fodera Thomas Joseph King, Esq. 2 of 11

3 NY Asphalt, Inc. One Battery Park Plaza, Ste 3009 New York, New York Goldstein Law, P.C. Jeffrey R Beitler, Esq. Greenberg Farrow Architecture, Inc Franklin Avenue Garden City, New York Conway, Farrell, Curtin & Kelly, P.C. Darrell John, Esq. Verizon Communications, Inc. a/k/a Verizon 48 Wall Street New York, New York Consolidated Edison Company of New York, Inc. Christine Tramontano, Esq. Consolidated Edison Company of New York. a/k/a Con Ed 4 Irving Place, Rm New York, New York of 11

4 COUNTY CLERK Ol:30 P INDEX NO /201 RECEIVED NYSCE F: 03/23/201 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND X THE TIDES AT CHARLESTON HOMEOWNERS ASSOCIATION, INC., Plaintiff, DCM 1M Present: - against - HON. CHARLES TROIA DECISION AND ORDER PC GROUP, LLC, et al., Index No /16 Motion No.: Defendants X â â The following papers numbered 1 to 3 were fully submitted on the 19th day of January, 2018: Notice of Motion to Dismiss by Defendants Raymond Paper Numbered Homes, Inc., Raymond Masucci, Michael Pucciarelli, and Joseph Malvasio, with Exhibits (dated December 18, 2017) Plaintiff's Memorandum of Law in Opposition with Supporting Papers and Exhibits (dated January 11, 2018)...2 Defendants' Reply, with Exhibits (dated January 17, 2018)...3. Upon the foregoing papers, defendants' Raymond Homes, Inc., Raymond Masucci, Michael Pucciarelli, and Joseph Malvasio, motion to dismiss the third amended complaint and all cross-claims asserted against them is granted. Plaintiff's third amended complaint alleges that defective work was done by defendants. Specifically, plaintiff asserts a cause of action against defendants Raymond Homes, Inc. (hereinafter "RHI") and Masucci for negligent supervision and breach of contract, and a cause of action against defendants Masucci, Pucciarelli and Malvasio for breach of fiduciary duty. Defendants RHI, Raymond Masucci, Michael Pucciarelli and Joseph Malvasio (collectively, "defendants") move to dismiss pursuant to CPLR 321l(a)(1) based upon 1 of 8 4 of 11

5 FILED : RICHMOND COUNTY CLERK 03 / 23 / :30 PMJ INDEX NO /201 RECEIVED NYSCEF: 03/23/201 documentary evidence, (a)(5) expiration of the statute of limitations, and (a)(7) that the pleadings fail to state a cause of action. Defendants also move to dismiss all cross-claims, respectively. Defendants collectively contend the following: that defendant Trades Construction "Trades" Services Corp. (hereinafter, "Trades") was the general contractor and construction manager for the project; that PC Group, LLC (hereinafter, "PCG") was the sponsor and/or declarant; that RHI was the developer of the properties; that defendant Masucci was a principal of RHI; and that defendants Masucci, Pucciarelli and Malvasio were members and/or officers of defendant PCG. i According to defendants, the homeowners purchased their premises from PCG. The last Certificate of Occupancy for the properties was issued on March 9, The last home was sold on or about July 15, Defendant RHI dissolved on June 17, 2013, more that a year after the last Certificate of Occupancy was issued for plaintiff's properties and was added as a defendant in this action more than three years after dissolution. According to defendant Masucci he was never the declarant for the project and he was never the declarant for the HOA. However, Masucci was plaintiff's President from November 30, 2005 until on or about October 10, 2012, when plaintiff was turned over to the homeowners. Masucci contends that he did not have any duty to supervise any of the defendants as a managing member of the sponsor or as President. Masucci also contends that he has not had any fiduciary duties in relation to plaintiff since October 10, Defendants RHI and Masucci contend that plaintiff has failed to state a cause of action for negligence and negligent supervision. In this regard, defendants contend that the third amended complaint does not assert the purported defects and dates of their purported negligence and negligent supervision. Defendants also contend that no claim of fraud or to pierce the corporate veil is asserted against them. Additionally, defendants contend that plaintiff's loss is purely 2 of 8 5 of 11

6 FILED: RICHMOND COUNTY CLERK : 30 PI INDEX NO /2016 RECEIVED NYSCEF: 03/23/2018 economic and that recovery in negligence is unavailable. In addition, RHI and Masucci contend that, pursuant to CPLR 214(4), the statute of limitations for negligent supervision in relation to property damage is three years and that this claim is barred by the statute of limitations. RHI and Masucci also contend that the relation back doctrine does not apply. RHI contends that assuming the last negligent act occurred on its date of dissolution on June 17, 2013, the third amended complaint was filed more than three years later on October 20, Thus, the claim is time-barred. Moreover, defendant Masucci contends that the cause of action against him for negligent supervision should also be dismissed as he was no longer a member of plaintiff's sponsor as of October 10, 2012 and any purported negligence and negligent supervision of the subject property would have to have occurred on or before October 10, As such, Masucci contends that the statute of limitations for any purported negligent supervision expired prior to plaintiff's having filed the third amended complaint. Further, Masucci testified at his deposition that, pursuant to the agreement between RHI and Trades it was defendant Trades responsibility "to make sure each item was constructed and/or developed." Further, defendants RHI and Masucci contend that plaintiff fails to state a cause of action for breach of contract. According to defendants, plaintiff fails to sufficiently plead the purported defects and dates relating to RHI's agreement with Trades. Defendants also contend that the individual homeowner's contracts are with PCG, and not with RHI or Masucci. In addition, no claim of fraud or to pierce the corporate veil is asserted against RHI and Masucci. Defendants contend that plaintiff has failed to sufficiently plead any purported participation by defendants as PCG's managing members and/or principals in a tort in furtherance of PCG's business which would render them personally liable. 3 of 8 6 of 11

7 .. F ILED : RICHMOND COUNTY CLERK :30 P INDEX NO /2016 RECEIVED NYSCEF: 03/23/ As to the allegation of an "implied contract," defendants assert any such contract would be barred by the statute of frauds. In addition, defendants contend that PCG exists independently of its owners and that they cannot be sued for actions taken in their capacity as officers and/or members of PCG. RHI contends that plaintiff is not a third party beneficiary to its contract with Trades, which contract Masucci was not a party. RHI contends that its contract with Trades contained no express intent to benefit plaintiff. In addition, defendants Masucci, Pucciarelli and Malvasio contend that plaintiff has failed to state a cause of action for breach of fiduciary duty. Defendants also contend that as the relief sought is money damages, the applicable three-year statute of limitations has expired. According to defendants, more than three years have passed since they were on plaintiff's board of directors and they have not had any fiduciary duties in relation to plaintiff since October 10, Defendants also contend that plaintiff's affidavit of Christopher Antonacci, the vice president of the current property manager, Association Advisors, is by someone without personal knowledge and who is unqualified to speak to facts that occurred prior to when defendants left the board of directors. Defendants Masucci, Pucciarelli and Malvasio contend that since no claim of fraud or to pierce the corporate veil is asserted against them, they cannot be sued for actions taken in their capacity as officers and/or members of the sponsor, PCG. Defendants contend that defendant PCG exists independently of its owners who are not personally liable for its obligations. Further, defendants contend that the relation back doctrine does not apply, that defendants are not united in interest and that they cannot be charged with notice of commencement of the action. In opposition, plaintiff contends that defendants RHI, Masucci, Pucciarelli and Malvasio have failed to meet their burden to dismiss the causes of action in the complaint asserted against 4 of 8 7 of 11

8 F ILED: RICHÑOND COUNTY CLERK 03/23/ P INDEX NO /201 RECEIVED NYSCEF: 03/23/201 them. Plaintiff maintains that its causes of action are not time barred based on the relation back doctrine. According to plaintiff, RHI is the sole member of defendant PCG and should "share the same liability." Plaintiff also contends that defendants Masucci, Pucciarelli and Malvasio are personally liable inasmuch as they purportedly "played an integral roles" on behalf of PCG. In addition, plaintiff contends that no prejudice exists to defendants RHI, Masucci, Pucciarelli and Malvasio "because they continue to be represented by the same attorney." Further, plaintiff's submits an affidavit of Christopher Antonacci, the current property manager of plaintiff Tides, which alleges that defendants "ensured to take necessary steps to ensure that [architect] Rampulla's work was completed properly." A motion to dismiss under CPLR 3211(a)(7) will be granted where, within the four corners of the pleading, liberally construed, the pleader has failed to state a cause of action, or if documents and other submissions establish conclusively that the pleader has no cause of action (see Simos v. Vic-Armen â Realty, LLC, 92 AD3d 760, 761 [2nd Dept. 2012] ; see also Taylor v. Pulvers, Pulvers, Thompson & Kuttner, P.C., 1 AD3d 128 [1st Dept. 2003]). Accepting the facts as alleged in the third amended complaint as true and according plaintiff the benefit of every possible favorable inference, plaintiff has failed to sufficiently plead its causes of action sounding in negligence and/or negligent supervision, breach of contract and breach of fiduciary duties. In addition, on a motion to dismiss pursuant to CPLR 3211(a)(1), dismissal is warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see Flushing Expo, Inc. v. New World Mall, 116 AD3d 826 [2nd Dept. 2014]). Here, the documentary evidence conclusively establishes as a matter of law that plaintiff did not have a contract with RHI or Masucci and that plaintiff's claims against defendants are time barred. 5 of 8 8 of 11

9 NYSCEF D : RICHMOND DOC. NO. 366 COUNTY CLERK : 30 P INDEX NO /201 RECEIVED NYSCEF: 03/23/201 The elements of a cause of action to recover damages for breach of contract are (1) the existence of a contract, (2) the plaintiffs performance under the contract, (3) the defendant's breach of the contract, and (4) resulting damages (see Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 AD3d 804, 806 [2nd Dept. 201l]). Here, the only breach alleged concerns the contract between defendant Trades and RHI. Inasmuch as no claim of fraud and to pierce the corporate veil having been asserted against RHI and Masucci, defendant Masucci cannot be held personally liable for the corporation's obligations by virtue of his status as a principal and/or member. A corporate officer is not subject to personal liability for actions taken in furtherance of the corporation's business under the well-settled rule that an agent for a disclosed principal will not be personally bound unless there is clear and explicit evidence of the agent's intention to substitute or super-add his personal liability for, or to, that of his principal (see Savoy Record Co. v. Cardinal Export Corp., 15 NY2d 1, 4 [1964]). Plaintiff's allegations are insufficient to sustain a cause of action for breach of contract against defendants. In addition, a party asserting rights as a third-party beneficiary has the burden to demonstrate it has an enforceable right (see World Trade Knitting Mills v. Lido Knitting Mills, Inc., 154 AD2d 99 [2nd Dept. 1990]) and establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his or her benefit, and (3) that the benefit to him or her 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 (see Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314 [1983] ; see BDG Oceanside, LLC v. RAD Terminal Corp., 14 AD3d 472, 473 [2nd Dept. 2005}). Here, taking the allegations in the complaint as true and affording plaintiff every favorable inference, plaintiff has failed to sufficiently plead a cause of action against RHI and Masucci to recover damages for breach of 6 of 8 9 of 11

10 D COUNTY CLERK :30 P INDEX NO /201 RECEIVED NYSCEF: 03/23/201 contract on a third-party beneficiary theory. Any benefit plaintiff may have derived from defendants alleged agreements is not sufficiently immediate to indicate the assumption by the contracting parties of a duty to compensate plaintiff. Moreover, pursuant to the statute of frauds, an agreement not reduced to writing is void if, by its terms, it cannot reasonably be performed within one year of its making (see JNG Construction, Ltd v. Roussopoulos, 135 AD3d 709, 710 [2nd Dept. 2016]). Here, according to a reasonable interpretation of its terms, the agreement between Trades and RHI could not be "1 performed within a year and, therefore, would be barred by the statute of frauds. Further, merely alleging that a party breached a contract because it failed to act with due care will not transform a strict breach of contract claim into a negligence claim (see Verizon NY, Inc. v. Optical Communications Group, Inc., 91 AD3d 176 [1" Dept. 201II). A breach of contract is not to be considered a tort unless a legal duty independent of the contract has been violated (see Bd of Managers of Riverview at College Point Condo III v. Schorr Bros. Dev. Corp., 182 AD2d 664, [2nd Dept. 1992]). This legal duty must spring from circumstances extraneous to, and not constituting elements of the contract, although it may be connected therewith and dependent upon the contract (see I.d). Here, affording the pleadings the benefit of every favorable inference and considering whether the facts as alleged fit within any cognizable legal theory, plaintiff fails to assert a duty independent of the contract alleged to have been violated. Additionally, as plaintiffs are only seeking repair costs same cannot be recovered in a negligence action. (Key Int'l. Mfg. v. Morse/Diesel, Inc., 142 AD2d 448 [2nd Dept. 1988}). Moreover, in order to establish a breach of fiduciary duty, plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct (see McSpedon v. Levine, 158 AD3d 618 [2nd Dept. 7 of 8 10 of 11

11 F ILED : RICHMOND COUNTY CLERK 03 /23 / : 30 P$ INDEX NO /2016 RECEIVED NYSCEF: 03/23/ ]). Plaintiff fails to sufficiently allege facts to establish it sustained pecuniary damages as a result of defendants' alleged fiduciary duties (i.d.). In addition, the choice of the applicable statute of limitations period for breach of fiduciary duty depends on the substantive remedy that plaintiff seeks (see IDT Corp. v. Morgan Stanley Dean & Witter & Co., 12 NY3d 132, 139 [2009]). Where the relief sought is for money damages, a cause of action for breach of fiduciary duty is governed by a three-year statue of limitations (see CPLR 214; see Wiesenthal v Wiesenthal, 40 AD3d 1078 [2nd Dept. 2007]). Here, as plaintiff's suit for "injury to property" is monetary in nature and any purported "equitable" relief sought is incidental to that relief, a three-year statue of limitations applies (see IDT Corp. v. Morgan Stanley Dean & Witter & Co., 12 NY3d at 139). Plaintiff's claim is time barred since the latest that any cause of action could have accrued was October 12, Accordingly, defendants' motion to dismiss the complaint and all cross-claims is granted. This constitutes the decision and order of the Court. Dated: March 23, 2018 E N T E R, J. S. C. Acting Hon. Charles M. Troia Suprerne Court Justice 8 of 8 11 of 11