In this season, gifts are being shuttled around, and many look to receive. Board of Mgrs. of Brightwater Towers Condominium v SNS Org., Ltd. 2017 NY Slip Op 31791(U) August 24, 2017 Supreme Court, Kings County Docket Number: 503102/16 Judge: Lawrence S. Knipel is an example what happens when one asks correctly for a second chance. Rather than an Oliver Twist outcome, the Court granted leave to replead.
“The plaintiff Board of Managers of Brightwater Towers Condominium (the plaintiff) moves for an order ( 1) pursuant to CPLR 2221 ( d), for leave to reargue the branch of the motion (the prior motion) of the defendants New York Engineering Associates, P.C., and Neal M. Rudikoff, P.E. (the defendants), which was for an order, pursuant to CPLR 3211 (a) (7), dismissing the plaintiffs original complaint as against them for failure to state a claim, and (2) pursuant to CPLR 3025 (b ), granting it leave to serve its first amended verified complaint. By decision, order, and judgment, dated Feb. 17, 2017 (the prior order), the Court granted the defendants’ prior motion to the extent of dismissing the plaintiffs original complaint as against them for failure to state a claim. The plaintiffs original complaint, dated Mar. 3, 2016, asserted, as against the defendants, a single cause of action for professional malpractice (see Original Complaint, iii! 76-89 [Second Cause of Action]). The original complaint, as more fully set forth in the margin, 1 did not allege that “the underlying relationship between the parties [was] one of privity of contract, or that the bond between them [was] so close as to be the functional equivalent of privity” (Perfetto v CEA Engineers, P.C., 114 AD3d 835, 836 [2d Dept 2014]). In its opposition to the defendants’ prior motion, the plaintiff, by counsel, raised the theory of privity but did not, at that time, move for leave to amend its original complaint to plead that theory…”
“The prior order, insofar as it addressed the plaintiffs claims against the defendants as pleaded in the original complaint, was correct, albeit with one caveat. It should have granted the plaintiff leave to replead. Accordingly, leave to reargue is granted and, upon reargument, the prior order is adhered to, subject to granting the plaintiff leave to rep lead as more fully set forth in the decretal paragraphs below. The remaining branch of the plaintiffs motion which is for leave to serve its first amended complaint is decided as set forth in the decretal paragraphs below. “