Board of Mgrs. of Petit Verdot Condominium v 732-734 WEA, LLC, 2023 NY Slip Op 01951 [215 AD3d 482]

April 18, 2023

Appellate Division, First Department

[*1]

Board of Managers of Petit Verdot Condominium, Appellant,

v

732-734 WEA, LLC, et al., Respondents.

Leech Tishman Robinson Brog, PLLC, New York (David Abramovitz of counsel), for appellant.

Abrams Garfinkel Margolis Bergson, LLP, New York (Andrew W. Gefell of counsel), for respondents.

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered October 7, 2022, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss the cause of action for breach of contract (the second cause of action) as against defendants Carter Sackman and James Hefelfinger, unanimously affirmed, without costs.

Plaintiff’s breach of contract claim against Sackman and Hefelfinger, principals of the condominium sponsor, was properly dismissed because a private litigant “may not pursue a common-law cause of action where the claim is predicated solely on a violation of the Martin Act [(General Business Law, art 23-A, § 352-e)] or its implementing regulations [(13 NYCRR 20.4 [b]), as is the case herein] and would not exist but for the statute” ( Assured Guar. [UK] Ltd. v J.P. Morgan Inv. Mgt. Inc. , 18 NY3d 341 , 353 [2011]; see also Board of Mgrs. of the Bayard Views Condominium v FPG Bayard, LLC , 187 AD3d 697 , 699-700 [2d Dept 2020]; Board of Mgrs. of 184 Thompson St. Condominium v 184 Thompson St. Owner LLC , 106 AD3d 542 , 544 [1st Dept 2013]). Concur—Kapnick, J.P., Moulton, Kennedy, Mendez, Pitt-Burke, JJ..