Insight

Sponsor’s Attempt to Avoid Liability for Construction Defects and to Limit Valid Claims of the Condominium Unit Owners Soundly Rejected by the Appellate Division

Sponsor’s Attempt to Avoid Liability for Construction Defects and to Limit Valid Claims of the Condominium Unit Owners Soundly Rejected by the Appellate Division

Adam Leitman Bailey

Adam Leitman Bailey

January 17, 2023 02:40 PM

In a hotly contested dispute between the Board of a Condominium and the Sponsor of the Condominium, the Board brought suit alleging, among other things, that there were numerous construction defects that the Sponsor was obligated to remedy but failed to do so. The Board’s complaint noted that the defects included were not limited to the eleven most serious defects which were listed in the complaint. The complaint also referenced the engineer’s report which set forth other numerous defects. The Engineer’s Report and a listing of all the defects found were also provided to the Sponsor in discovery.

The Sponsor disclaimed responsibility for any repairs or damages asserting that the Offering Plan contained a broad and controlling disclaimer stating that the buyers were taking the units and the building in an “as is” condition.

Subsequently, the Sponsor moved for summary judgment to dismiss the cause of action asserting the construction defects claim. Sponsor also argued that the additional defects which were set forth by the Board in discovery amounted to an improper indirect attempt to amend the Board’s complaint. The Board opposed the motion and the trial court denied the Sponsor’s motion for summary judgment, but granted that portion of the Sponsor’s motion which sought to limit the claims for the eleven items listed in the complaint. Both parties appealed to the Appellate Division, First Department.

On appeal, Adam Leitman Bailey, P.C. established that the Offering Plan, contained only limited waivers and that the Sponsor could not waive away its statutory obligations with respect to violations that had been found. Moreover, Adam Leitman Bailey, P.C. pointed out that the Sponsor failed to submit an affidavit from anyone with personal knowledge to demonstrate that the claimed defects fell within the disclaimers set forth in the Offering Plan or that the defects were not within the Sponsor’s obligation to comply with the law. The Appellate Division agreed and affirmed the denial of summary judgment.

The Appellate Division also adopted Adam Leitman Bailey, P.C.’s arguments that the information regarding the defects that was provided in discovery could be proven at trial. The Court found that the Board’s complaint was sufficiently particular to give the Sponsor notice of the matters that the Board intended to prove at trial. Further, the Court found that there was no need for the Board to move to amend its complaint.

Jeffrey R. Metz, Courtney Lerias, and Adam Leitman Bailey represented the Board before the Supreme Court and at the Appellate Division.

Click here for the Published Decision

Trending Articles

Presenting The Best Lawyers in Australia™ 2025


by Best Lawyers

Best Lawyers is proud to present The Best Lawyers in Australia for 2025, marking the 17th consecutive year of Best Lawyers awards in Australia.

Australia flag over outline of country

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

Announcing The Best Lawyers in New Zealand™ 2025 Awards


by Best Lawyers

Best Lawyers is announcing the 16th edition of The Best Lawyers in New Zealand for 2025, including individual Best Lawyers and "Lawyer of the Year" awards.

New Zealand flag over image of country outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing The Best Lawyers in Japan™ 2025


by Best Lawyers

For a milestone 15th edition, Best Lawyers is proud to announce The Best Lawyers in Japan.

Japan flag over outline of country

The Best Lawyers in Singapore™ 2025 Edition


by Best Lawyers

For 2025, Best Lawyers presents the most esteemed awards for lawyers and law firms in Singapore.

Singapore flag over outline of country

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

How Much Is a Lawyer Consultation Fee?


by Best Lawyers

Best Lawyers breaks down the key differences between consultation and retainer fees when hiring an attorney, a crucial first step in the legal process.

Client consulting with lawyer wearing a suit

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Presenting the 2024 Best Lawyers Employment and Workers’ Compensation Legal Guide


by Best Lawyers

The 2024 Best Lawyers Employment and Workers' Compensation Legal Guide provides exclusive access to all Best Lawyers awards in related practice areas. Read below and explore the legal guide.

Illustration of several men and women in shades of orange and teal

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Attacked From All Sides: What Is Happening in the World of Restrictive Covenants?


by Christine Bestor Townsend

One employment lawyer explains how companies can navigate challenges of federal and state governmental scrutiny on restrictive covenant agreements.

Illustration of two men pulling on string with blue door between them