Justice Joan Kenney
Defendants moved to dismiss the third-party complaint of the Lore Condominium Board of Managers asserting claims for negligence and fraud. Plaintiff asserted the condo was not in compliance with New York City Building Code, and requested that Steven Gaetano, the architect for the Lore, cure the defects and comply with all obligations under the offering plan. They sought to recover money allegedly owed by Gaetano for common charges on unsold units owned by Gateway IV, the sponsor of the Lore, of which Gaetano was the principal. The court noted Gaetano’s architect certification clearly indicated he disclaimed any duty to ensure the Lore was constructed in accordance with his report. Thus, Gaetano, as architect, could not be liable for negligent construction where he only certified the plans and specifications relied on for his report. Thus, the claim for negligence was dismissed. Also, the court dismissed the fraud claim against Gaetano as architect as it was preempted by the Martin Act as the claim was primarily based on Gaetano’s report and certification, which were required to be filed under the “Attorney General’s implementing regulations.”
