What You Buy May Not Be What You Get

TAKEAWAY The issues resolved by the court may wander a bit into the legal weeds—third-party complaints, common law indemnification, distinction between contract and professional malpractice claims—yet practitioners in the field, as well as board members, might take away at least two pointers. First, the responsibility for problems that unit owners might experience, especially in newly constructed or newly renovated buildings, may not be so easy to isolate or define. This lawsuit shows the many levels of legal responsibility that might exist for leakage and noise issues, such as professional design, construction, remediation, or maintenance. Second, the lawsuit shows that no matter how glossy the brochure, how exclusive the street address or how expensive the apartment, a residence is only as good as the level of care that went into its design, construction and maintenance. Your building may be a small walk-up in Brooklyn, but don’t hesitate to keep it well maintained by professionals. Also, take some comfort that you’re not swaying in the wind in a noisy and leaky apartment, several hundred feet above the street.



WHAT HAPPENED 432 Park Avenue, the tallest residential condominium building in the world when completed ten years ago, is part of Billionaire’s Row on 57th Street. Today, it is the third tallest building in New York City, trailing only One World Trade and the Empire State Building. Its residential units are among the most expensive in the world. Despite the building’s renown, height, location, and famous architect, owners have complained about water infiltration, drywall cracks in ceilings, malfunctioning sliding doors, condensation in windows, repeated tripping of circuit breakers, and an energy efficiency rating of “D”, the lowest mark. In addition, there are allegedly severe noise and vibration issues due to the sway of the slender building. The sway is said to cause creaking, banking and clicking that is so pervasive that sleep is impossible during inclement weather. By September 2021, the board of managers had enough, and a lawsuit was filed against the condominium’s sponsor and certain individuals. In March 2022, those sponsor defendants in turn filed their own claims, as third-party plaintiffs in a third-party complaint, against the condominium’s engineers, naming them as third-party defendants. The third-party complaint alleged that the purported defects in the condominium were due to defective design by the engineers. In a pre-answer motion to dismiss, the engineers moved to dismiss some of the many third-party claims filed against them by the sponsor.


IN COURT The court granted some of what the engineers (the third party defendants) wanted, but disagreed with their argument that some of the claims were too old and barred by the three-year statute of limitations. The court did agree with the engineers that professional malpractice claims and claims under the engineering contracts were duplicative. The court also agreed to dismiss the sponsor’s third-party claims against the engineers for common law indemnification.


COUNSEL For the 432 Park Condominium Board, Residential and Commercial Sections and Individual Unit Owners Herrick, Feinstein / For 56th and Park (NY) Owner Troutman Pepper Hamilton Sanders, Kramer Levin Naftalis & Frankel / For Ryan Harter Sullivan & Cromwell / For Harry Macklowe Feuerstein Kulick / For Non-Parties White & Williams, Wasserman Legal Judge Melissa Anne Crane