To be Argued by:
MARK C. ZAUDERER
(Time Requested: 30 Minutes)
APL # 2016-00202
New York County Clerk’s Index Nos. 403436/06,
590732/08, 591020/09, 591133/10 and 590318/12
Court of Appeals
of the
State of New York
DORMITORY AUTHORITY – STATE OF NEW YORK
and THE CITY OF NEW YORK,
Plaintiffs-Respondents,
– and –
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION,
Plaintiff,
– against –
SAMSON CONSTRUCTION CO. (a/k/a Sansom Construction Co., Inc.
d/b/a Samson Construction Company, Samson Construction Co., Inc.
and Samson Construction Inc.),
Defendant,
(For Continuation of Caption See Inside Cover)
REPLY BRIEF FOR DEFENDANT-APPELLANT
MARK C. ZAUDERER
JASON T. COHEN
GRANT A. SHEHIGIAN
FLEMMING ZULACK WILLIAMSON
ZAUDERER LLP
Attorney for Defendant-Appellant
One Liberty Plaza, 35th Floor
New York, New York 10006
Tel.: (212) 412-9500
Fax: (212) 964-9200
Dated: May 5, 2017
– and –
PERKINS EASTMAN ARCHITECTS, P.C.,
Defendant-Appellant.
––––––––––––––––––––––––––––––
SAMSON CONSTRUCTION CO., INC.,
Third-Party Plaintiff,
– against –
HAYWARD BAKER, INC., VACHRIS ENGINEERING, P.C.
and AKRF ENGINEERING, P.C.,
Third-Party Defendants.
––––––––––––––––––––––––––––––
VACHRIS ENGINEERING, P.C.,
Fourth-Party Plaintiff,
– against –
MUESER RUTLEDGE CONSULTING ENGINEERS,
Fourth-Party Defendant.
––––––––––––––––––––––––––––––
PERKINS EASTMAN ARCHITECTS, P.C.,
Second Third-Party Plaintiff,
– against –
SEVERUD ASSOCIATES CONSULTING ENGINEERS, P.C., GILBANE
BUILDING COMPANY, TDX CONSTRUCTION CORPORATION, GILBANE
BUILDING COMPANY/TDX CONSTRUCTION CORPORATION, a Joint
Venture, and PILE FOUNDATION CONSTRUCTION COMPANY, INC.,
Second Third-Party Defendants.
––––––––––––––––––––––––––––––
SAMSON CONSTRUCTION CO., INC. and PILE FOUNDATION
CONSTRUCTION COMPANY, INC.,
Third Third-Party Plaintiffs,
– against –
ROADWAY CONTRACTING, INC., SOIL SOLUTIONS, INC.,
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
KLINE IRON & STEEL CO., INC., A.J. MCNULTY
& COMPANY, INC. and SPX CORPORATION,
Third Third-Party Defendants.
i
CORPORATE DISCLOSURE STATEMENT
Pursuant to §500.1(f) of the Rules of the Court of Appeals, Defendant-
Appellant Perkins Eastman Architects, P.C. states that it has no publicly traded
parents, subsidiaries or affiliates.
ii
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .......................................................... i
TABLE OF AUTHORITIES .................................................................................... iv
PRELIMINARY STATEMENT ............................................................................... 1
ARGUMENT ............................................................................................................. 1
POINT I
THE CITY’S OPPOSITION, DEPENDENT ON A SINGLE
IRRELEVANT CASE APPLYING A DIFFERENT LEGAL
PRINCIPLE, DOES NOT DEMONSTRATE THAT THE CITY IS
AN INTENDED THIRD-PARTY BENEFICIARY ....................................... 1
A. Newburgh And The “Functional Equivalent Of Privity”
Doctrine Are Irrelevant To This Appeal ............................................... 3
B. Port Chester And Fourth Ocean Are Good Law And Good
Policy And Set Forth The Basis On Which This Court Should
Determine If The City Qualifies As An Intended Third-Party
Beneficiary ............................................................................................ 6
1. Public Policy Interests Are Advanced By Adhering To
Port Chester And Fourth Ocean, Not By Rejecting Them ........... 10
C. Whether The City Qualifies As A Third-Party Beneficiary
Should Be Decided As A Matter Of Law ........................................... 13
D. The City Does Not Dispute That DASNY Can Recover For
The Same Damages And That There Is No Express Language
In The Contract Conferring Intended Third-Party Beneficiary
Status Upon The City .......................................................................... 13
POINT II
DASNY FAILS TO IDENTIFY ANY RELEVANT AUTHORITY,
EVIDENCE, OR POLICY TO JUSTIFY A NEGLIGENCE
CLAIM ENTIRELY DUPLICATIVE OF ITS BREACH OF
CONTRACT CLAIM .................................................................................... 16
iii
A. Perkins’ Status As A Professional Does Not By Itself Give
DASNY The Right To Assert Both Tort And Contract Claims
That Seek Identical Damages .............................................................. 18
B. There Is No Evidence In The Record To Suggest That
Perkins’ Alleged Breach Of Contract Could Have Led To
Catastrophic Consequences ................................................................. 22
C. Discovery Has Proven That DASNY Seeks Identical
Damages Under Its Tort And Contract Claims,
Notwithstanding The Different Damages Amounts Set Forth
In Its Complaint ................................................................................... 25
CONCLUSION ........................................................................................................ 29
iv
TABLE OF AUTHORITIES
Page(s)
Cases:
Air Atlanta Aero Eng’g Ltd. v. SP Aircraft Owner I, LLC,
637 F.Supp.2d 185 (S.D.N.Y. 2009) ............................................................. 10
AMEC Constr. Mgmt., Inc. v. City of New York,
No. 604391, 2012 WL 171031 (Sup. Ct. N.Y. Co. Jan. 10, 2012) ................. 5
Bocre Leasing Corp. v. Gen. Motors Corp. (Allison Gas Turbine Div.),
84 N.Y.2d 685, 621 N.Y.S.2d 497 (1995) ..................................................... 25
Bristol-Myers Squibb, Indus. Div. v. Delta Star, Inc.,
206 A.D.2d 177, 620 N.Y.S.2d 196 (4th Dep’t 1994) .................................. 27
Brooklyn Union Gas Co. v. Interboro Asphalt Surface Co.,
303 A.D.2d 532, 757 N.Y.S.2d 72 (2d Dep’t 2003) ....................................... 9
Brownell Steel, Inc. v. Great Am. Ins. Co.,
28 A.D.3d 842, 813 N.Y.S.2d 550 (3d Dep’t 2006) ....................................... 5
Brushton-Moira Cent. Sch. Dist. v. Fred H. Thomas Assocs., P.C.,
91 N.Y.2d 256, 669 N.Y.S.2d 520 (1998) ............................................... 19, 20
City Sch. Dist. of City of Newburgh v. Hugh Stubbins & Assocs., Inc.,
85 N.Y.2d 535, 626 N.Y.S.2d 741 (1995) ..............................................passim
Clark-Fitzpatrick, Inc. v. Long Island R.R. Co.,
70 N.Y.2d 382, 521 N.Y.S.2d 653 (1987) ................................................. 1, 27
Conklin v. City of Saratoga Springs,
267 A.D.2d 841, 699 N.Y.S.2d 820 (3d Dep’t 1999) ..................................... 9
Consol. Edison, Inc. v. Ne. Utils.,
426 F.3d 524 (2d Cir. 2005) ...................................................................... 9-10
Fourth Ocean Putnam Corp. v. Interstate Wrecking Co.,
66 N.Y.2d 38, 495 N.Y.S.2d 1 (1985) ....................................................passim
Hamlet at Willow Creek Dev. Co. v. Northeast Land Dev. Corp.,
64 A.D.3d 85, 878 N.Y.S.2d 97 (2d Dep’t 2009) ........................................... 4
LaSalle Nat’l Bank v. Ernst & Young LLP,
285 A.D.2d 101, 729 N.Y.S.2d 671 (1st Dep’t 2001) ..................................... 8
v
Ossining Union Free Sch. Dist. v. Anderson LaRocca Anderson,
73 N.Y.2d 417, 541 N.Y.S.2d 335 (1989) ....................................................... 4
Piccoli v. Calvin Klein Jeanswear Co.,
19 F.Supp.2d 157 (S.D.N.Y. 1998) ............................................................... 10
Port Chester Elec. Constr. Corp. v. Atlas,
40 N.Y.2d 652, 389 N.Y.S.2d 327 (1976) ..............................................passim
Robert H. Finke & Sons, Inc. v. Sears Oil Co.,
256 A.D.2d 868, 681 N.Y.S.2d 829 (3d Dep’t 1998) ..................................... 5
Saska v. Metro. Museum of Art,
42 Misc.3d 548, 975 N.Y.S.2d 605 (Sup. Ct. N.Y. Co. 2013) ........................ 9
Saunders Ventures, Inc. v. Morrow,
No. 33638/2011, 2014 WL 834118
(Sup. Ct. Suffolk Co. Feb. 20, 2014) ............................................................... 9
Sears, Roebuck & Co. v. Enco Assocs.,
43 N.Y.2d 389, 401 N.Y.S.2d 767 (1977) ......................................... 19, 20, 21
Sommer v. Fed. Signal Corp.,
79 N.Y.2d 540, 583 N.Y.S.2d 957 (1992) ..............................................passim
State of California Pub. Employees’ Ret. Sys. v. Sherman & Sterling,
95 N.Y.2d 427, 718 N.Y.S.2d 256 (2000) ................................................... 7-8
State of New York v. Liberty Mut. Ins. Co.,
23 A.D.3d 1084, 803 N.Y.S.2d 865 (4th Dep’t 2005) .................................... 8
Travelers Cas. & Sur. Co. v. Dormitory Auth.-State of New York,
734 F.Supp.2d 368 (S.D.N.Y. 2010) ............................................................... 4
Trustees of Columbia Univ. in City of N.Y. v.
Gwathmey Siegel & Assocs. Architects,
192 A.D.2d 151, 601 N.Y.S.2d 116 (1st Dep’t 1993) ................................... 24
U.S. Bank Nat’l Ass’n v. GreenPoint Mortgage Funding, Inc.,
105 A.D.3d 639, 965 N.Y.S.2d 401 (1st Dep’t 2013) ..................................... 8
V.M. Paolozzi Imps., Inc. v. Am. Honda Motor Co., Inc.,
12-CV-1052, 2015 WL 7776926 (N.D.N.Y. Dec. 02, 2015) .......................... 9
vi
Statutes & Other Authorities:
Restatement (Second) of Contracts, § 302, Intended and Incidental
Beneficiaries (1981)....................................................................................... 10
1
PRELIMINARY STATEMENT
Respondents’ opposing arguments promote a common theme. They
challenge settled Court of Appeals jurisprudence and seek to expand liability in
novel ways.
This Court has never allowed third-party beneficiary liability to be expanded
beyond the parameters set forth in Port Chester and Fourth Ocean and there is no
reason to accept respondents’ invitation to do so now. Similarly, this Court,
recognizing the vitality of Clark-Fitzpatrick and Sommer, has never permitted
negligence claims to be pursued that duplicate a contract claim and seek the same
damages. To do so now would disturb decades of settled Court of Appeals
jurisprudence that parties have come to understand and live by. We urge the Court
to reject these initiatives.
ARGUMENT
POINT I
THE CITY’S OPPOSITION, DEPENDENT ON A SINGLE
IRRELEVANT CASE APPLYING A DIFFERENT LEGAL
PRINCIPLE, DOES NOT DEMONSTRATE THAT THE
CITY IS AN INTENDED THIRD-PARTY BENEFICIARY
The City’s opposition to Perkins’ appeal on the third-party beneficiary claim
rests on the New York Court of Appeals decision in City Sch. Dist. of City of
Newburgh v. Hugh Stubbins & Assocs., Inc., 85 N.Y.2d 535, 626 N.Y.S.2d 741
(1995), which the City erroneously asserts reverses and renders obsolete decades
2
of Court of Appeals precedent. Respondents’ Br., p. 21. The City’s reliance on
Newburgh is misguided, because the disputed issue here is whether the City
qualifies as an intended third-party contract beneficiary. Newburgh applies a
different legal concept, the “functional equivalent of privity” doctrine, which
allows a plaintiff to state a cause of action for negligence based on a finding of the
functional equivalent of privity if certain factors are proven. Newburgh is a
negligence case and makes no holding under the third-party beneficiary rule, and it
is therefore irrelevant to this case.
For the City to maintain a suit against Perkins for a breach of a contract to
which it is not a party, the controlling law of this Court requires, under the Fourth
Ocean two-prong test, that the City demonstrate that (1) it is the only party that can
recover damages under the contract, or (2) the contract clearly evidences an intent
by the parties to permit enforcement by the City. Opening Br., 32-33. The City’s
brief, resting its opposition on the theory that Newburgh fundamentally changed
the law pertaining to the third-party beneficiary doctrine, fails even to attempt a
showing that it can meet the Fourth Ocean two-prong test. The City does not
challenge Perkins’ demonstration in its opening brief that (1) DASNY can recover
under the contract for the benefit of the City; and that (2) the contract between
DASNY and Perkins does not clearly evidence an intent to permit the City to
separately enforce its terms against Perkins. Opening Br., pp. 30-39.
3
A. Newburgh And The “Functional Equivalent Of
Privity” Doctrine Are Irrelevant To This Appeal
The issue here is whether the City, which has no contract with Perkins, can
demonstrate that it is an intended third-party beneficiary. To resolve this issue, the
Court should look to the case law applying the third-party beneficiary doctrine, not
case law addressing the circumstances under which a party may assert a claim for
negligence pursuant to the functional equivalent of privity doctrine.
Newburgh concerns the accrual date for an owner’s negligence claims
against an architect and contractors arising out of a burst pipe installed during a
construction project completed fifteen years earlier. In Newburgh, this Court held
that plaintiff’s negligence claims against architects and contractors accrued upon
completion of the performance, and not the later date of injury accrual date for
negligence, because the defendants’ purported liability had “its genesis in the
contractual relationship.” 85 N.Y.2d at 538, 626 N.Y.S.2d at 742-43. That
“plaintiff was the intended beneficiary of the contract” was not disputed. Id. at
538, 626 N.Y.S.2d at 743. The Court was not presented with deciding that issue; it
was assumed. The Court held: “that fact [that plaintiff was the intended
beneficiary],” and other circumstances, created a relationship that was the
functional equivalent of privity, requiring a finding that plaintiff’s negligence
claims were barred by the statute of limitations, by virtue of its relationship with
the contracting party. Id. at 538-39, 626 N.Y.S.2d at 743.
4
Newburgh is a direct descendant of Ossining Union Free Sch. Dist. v.
Anderson LaRocca Anderson, 73 N.Y.2d 417, 541 N.Y.S.2d 335 (1989), in which
this Court explained that the doctrine of functional privity is “the basis for defining
the ambit of duty in negligence.” Id. at 421, 541 N.Y.S.2d at 337. This Court
discussed at length the decisional antecedents of the functional equivalent of
privity doctrine going back to an 1842 English case involving an “action [which]
apparently sounded in tort” and in which the jurist, Lord Abinger, “relied primarily
on the absence of a contract in denying recovery.” Id. at 422, 541 N.Y.S.2d at
337.1
Courts have affirmed that the functional equivalency doctrine is limited to
negligence claims. Travelers Cas. & Sur. Co. v. Dormitory Auth.-State of New
York, 734 F.Supp.2d 368, 382 n.21 (S.D.N.Y. 2010) (“New York courts have also
refused to allow a third party to recover for breach-of-contract under a ‘functional
equivalent of privity’ theory.”); see also Hamlet at Willow Creek Dev. Co. v.
Northeast Land Dev. Corp., 64 A.D.3d 85, 105, 878 N.Y.S.2d 97, 112 (2d Dep’t
2009) (rejecting plaintiff's attempt to sustain contract claims based on functional
equivalence of privity theory because plaintiff’s claim “[was] not premised upon a
negligent misrepresentation.”).
1 As the City notes in its brief, at p. 16, the third-party beneficiary doctrine has its
own history going back at least to 1859. The two doctrines -- third-party
beneficiary and functional equivalence of privity -- are distinct.
5
We are not aware of any Court of Appeals cases applying the “functional
equivalent of privity” doctrine to a breach of contract case, although a few lower
court decisions have done so on very different facts (discussed in the paragraph
below). Even if it would be appropriate to do so, and we contend it would not be,
this issue need not be considered here because the City has not argued for the
application of the functional equivalent of privity doctrine here or below; and, in
any event, the City has not submitted proof to seek to establish the functional
equivalent of privity.
The few lower court decisions that have applied the functional equivalent of
privity in a contract setting have done so only where the parties performed as if
they were directly contracting parties: for example, where a subcontractor dealt
directly with the owner, which agreed to pay for the leasing of equipment and to
whom the contractor sent its invoices (Robert H. Finke & Sons, Inc. v. Sears Oil
Co., 256 A.D.2d 868, 869, 681 N.Y.S.2d 829, 830 (3d Dep’t 1998) (term
functional equivalent of privity not used)); where the owner promised to pay for
the subcontractor’s services (AMEC Constr. Mgmt., Inc. v. City of New York, No.
604391, 2012 WL 171031 (Sup. Ct. N.Y. Co. Jan. 10, 2012); and where a second-
tier subcontractor stood in the shoes of the first-tier contractor and assumed all
responsibilities of the first-tier contractor (Brownell Steel, Inc. v. Great Am. Ins.
Co., 28 A.D.3d 842, 843, 813 N.Y.S.2d 550, 551 (3d Dep’t 2006)).
6
Accordingly, even if this Court were to conclude that the functional
equivalent of privity doctrine applies to breach of contract cases, and even if it
were to conclude that the issue is before the Court, there is no basis for the Court to
conclude that the City had a relationship with Perkins that constituted the
functional equivalent of a contractual relationship. DASNY, not the City,
contracted for, oversaw and managed the construction of the facility. Opening Br.,
p. 7. Perkins would report, make recommendations and provide services to
DASNY, not the City. Id., p. 8. Perkins was paid by DASNY, not the City. Id.
Simply stated, the City and Perkins never interacted as if they were the contracting
parties.
B. Port Chester And Fourth Ocean Are Good Law And Good Policy
And Set Forth The Basis On Which This Court Should Determine
If The City Qualifies As An Intended Third-Party Beneficiary
In erroneously stating that “this Court’s later decision in Newburgh
confirmed that the contract need not contain a provision explicitly stating that a
third party is the intended beneficiary for the doctrine to apply,” the City wrongly
declares that the Newburgh decision overruled or repudiated this Court’s earlier
decisions in Port Chester Elec. Constr. Corp. v. Atlas, which held that a contract
“which does not expressly state that the intention of the contracting parties is to
benefit a third party -- does not give third parties who contract with the promisee
the right to enforce the latter’s contract with another” (40 N.Y.2d 652, 656, 389
7
N.Y.S.2d 327, 330 (1976)), and Fourth Ocean Putnam Corp. v. Interstate
Wrecking Co., which held that one ground for allowing an entity to enforce a
contract to which it is not a party is when “the language of the contract otherwise
clearly evidences an intent to permit enforcement by the third party” (66 N.Y.2d
38, 45, 495 N.Y.S.2d 1, 5 (1985)). As shown in Point I.A., above, the Newburgh
decision deals with a different issue and makes no reference to any case law,
analysis or considerations in determining whether a party is an intended third-party
beneficiary. Newburgh does not (as it would have no reason to) state that it is
overturning, repudiating or modifying the long-standing law set forth in the then-
recent Port Chester and Fourth Ocean decisions.
With respect to the key legal dispute here -- whether the Court should
consider “surrounding circumstances” in determining if the City may sue for
breach of a contract to which it is not a party -- there are numerous (too many to
count) post-Newburgh decisions from the Court of Appeals, the Appellate
Divisions, the New York State trial courts and federal courts applying New York
law that either rely on Fourth Ocean, the Fourth Ocean two-prong test or cite to
Fourth Ocean for the principle that “the language of the contract otherwise [must]
clearly evidence[] an intent to permit enforcement by the third party.” 66 N.Y.2d
at 45, 495 N.Y.S.2d at 5. For example, in 2000, this Court cited to Fourth Ocean
for the general standard for asserting rights as a third-party beneficiary. State of
8
California Pub. Employees’ Ret. Sys. v. Sherman & Sterling, 95 N.Y.2d 427, 434-
35, 718 N.Y.S.2d 256, 259 (2000).
After Newburgh, each of the Appellate Division departments has recognized
the rule, rejected by the City, that a claim by a non-party to a contract cannot be
sustained in the absence of clear language in the agreement evincing an intent to
benefit the non-party.2 See, e.g., U.S. Bank Nat’l Ass’n v. GreenPoint Mortgage
Funding, Inc., 105 A.D.3d 639, 640, 965 N.Y.S.2d 401, 402 (1st Dep’t 2013)
(“[G]iven the absence of any clear language on the face of the loan sale agreements
evincing an intent to benefit third parties, the insurers failed to allege facts
sufficient to sustain the claim that the agreements were intended to give them third-
party benefits.”); LaSalle Nat’l Bank v. Ernst & Young LLP, 285 A.D.2d 101, 108-
09, 729 N.Y.S.2d 671, 676 (1st Dep’t 2001) (“[T]he parties’ intent to benefit the
third party must be apparent from the face of the contract. . . . Absent clear
contractual language evincing such intent, New York courts have demonstrated a
reluctance to interpret circumstances to construe such an intent.”) (citing Fourth
Ocean); State of New York v. Liberty Mut. Ins. Co., 23 A.D.3d 1084, 1085, 803
N.Y.S.2d 865, 866 (4th Dep’t 2005) (because “[t]he intention to benefit the third
2 The City’s comment that “[t]he contract does not have to expressly name the
party as a third-party beneficiary” (Respondent’s Br., p. 17) refutes an argument
that Perkins did not advance. Perkins does not contend that the City must be
specifically mentioned as a third-party beneficiary; rather, the contract must
“expressly state that the intention of the contracting parties is to benefit a third
party.” See Port Chester, 40 N.Y.2d at 656, 389 N.Y.S.2d at 330.
9
party must appear from the four corners of the instrument,” the State of New York
was not an intended third-party beneficiary of contract between Thruway Authority
and insurance company where the State was not named as an insured or otherwise
referred to in the policy) (citing Fourth Ocean and other cases); Brooklyn Union
Gas Co. v. Interboro Asphalt Surface Co., 303 A.D.2d 532, 535, 757 N.Y.S.2d 72,
75-76 (2d Dep’t 2003) (citing Fourth Ocean, the court held that the contract must
“clearly evidence[] an intent to permit enforcement by the third party”); Conklin v.
City of Saratoga Springs, 267 A.D.2d 841, 842, 699 N.Y.S.2d 820, 821 (3d Dep’t
1999) (plaintiff’s cause of action for breach of contract based on claimed third-
party beneficiary status properly dismissed where the contract “does not contain an
express provision identifying plaintiff as an intended third-party beneficiary” or
“otherwise reveal a specific intent to confer a benefit upon plaintiff or permit
plaintiff to enforce the contract terms.”).
In addition, numerous New York state trial court and federal courts have
followed Fourth Ocean in the years since Newburgh was decided. See, e.g., Saska
v. Metro. Museum of Art, 42 Misc.3d 548, 559, 975 N.Y.S.2d 605, 615 (Sup. Ct.
N.Y. Co. 2013): Saunders Ventures, Inc. v. Morrow, No. 33638/2011, 2014 WL
834118, at *2 (Sup. Ct. Suffolk Co. Feb. 20, 2014); V.M. Paolozzi Imps., Inc. v.
Am. Honda Motor Co., Inc., 12-CV-1052, 2015 WL 7776926, at *5 (N.D.N.Y.
Dec. 02, 2015); Consol. Edison, Inc. v. Ne. Utils., 426 F.3d 524, 527 (2d Cir.
10
2005); Air Atlanta Aero Eng’g Ltd. v. SP Aircraft Owner I, LLC, 637 F.Supp.2d
185, 190-91 (S.D.N.Y. 2009); Piccoli v. Calvin Klein Jeanswear Co., 19 F.Supp.2d
157, 162 (S.D.N.Y. 1998) (explicitly adopting Fourth Ocean two-prong test).
Both Fourth Ocean and Port Chester are also cited in Restatement (Second) of
Contracts, §302, Intended and Incidental Beneficiaries (1981), pp. 116, 120.
This history (and the absence of a history of courts following Newburgh to
determine whether a party is a third-party beneficiary) makes clear that Fourth
Ocean -- and not Newburgh -- is the governing standard for determining when a
non-party to a contract can assert a breach of contract claim.
1. Public Policy Interests Are Advanced By Adhering To
Port Chester And Fourth Ocean, Not By Rejecting Them
The City’s approach -- relying on surrounding circumstances or extrinsic
evidence to make a claim for intended third-party beneficiary status -- has not only
been rejected by this Court and many others applying New York law (Opening Br.,
pp. 32-33, 38-40), but Perkins demonstrated that there will be no harm to the City
by application of the clear-cut First Ocean two-prong test. Here, DASNY, the
party with whom Perkins agreed to do business and contract with, can pursue and
collect all damages. Opening Br., p. 33-34. The City does not dispute this fact.
The City wrongly contends that “the third-party beneficiary doctrine [as it
envisions it] will never have unduly expansive application because it is cabined by
the parties’ intent.” Respondents’ Br., p. 26. The City also argues that the default
11
position should be the existence of third-party beneficiary status unless there is
“language expressly barring enforcement of the contract by third parties.” Id.; see
also id., p. 16 (“[I]t makes pragmatic and equitable sense for [true injured] party to
share the right to sue for the breach, at least as a default rule . . . .”).
By importing intent and the ability to use extrinsic evidence or surrounding
circumstances into every action in which there is a dispute over whether a non-
contracting party can enforce a contract, an issue of fact is created in virtually
every case, creating a triable issue, greater litigation expense and the absence of
outcome predictability. Under such circumstances, the “peculiar problems
presented by construction contracts” would result in every end-user of a
construction project conjuring an argument that it is an intended third-party
beneficiary. See Port Chester, 40 N.Y.2d at 656, 389 N.Y.S.2d at 330. As noted
in Point I.C., the determination of third-party beneficiary status is an issue of law.
The Fourth Ocean two-prong test provides predictability and ease of application.
Respondents have it backwards in suggesting that the burden should be on
the contracting parties to include language barring enforcement by a third party.
The third-party beneficiary rule is an exception to the general rule that only parties
to a contract can enforce that contract and the long-established public policy giving
parties control over their contractual arrangements, and this Court has held that in
12
the absence of an express statement, ordinary construction contracts do not confer
third-party beneficiary rights. Opening Br., pp. 32-33.
It would be poor policy to vastly liberalize the third-party beneficiary rule by
placing the burden on contracting parties to anticipate and protect against the
possibility of enforcement claims from third-parties, especially since many
contracts are ones of adhesion or in which a contracting party has little leverage or
control over the terms. Surely then, if respondent’s proposal is adopted, every
effort to oppose a non-party’s effort to enforce a contract will be met with the
refrain that the contracting party should have insisted on language barring
enforcement by third parties, as the respondents urge here. See Respondents’ Br.,
p. 22 (“Perkins never bargained for a provision negating the default rule.”).
Such court-created contractual relationships would have a chilling effect on
the construction and real estate industries in New York. Every project has multiple
parties, each with a separate contractual relationship with other parties. Their
contracts make clear who has responsibilities to whom. And insurers and sureties,
when issuing insurance to construction project participants, would not only have to
consider with whom their insureds contracted on each project, but also each end-
user which now could be deemed intended beneficiaries of those contracts.
This Court has already established clear and workable standards for
determining whether a party qualifies as an intended third-party beneficiary in Port
13
Chester and Fourth Ocean. Many courts have properly applied those standards.
This Court should reaffirm them to ensure that they are universally followed.
C. Whether The City Qualifies As A Third-Party
Beneficiary Should Be Decided As A Matter Of Law
The City’s contention that it has raised a triable issue of fact as to whether
the City was an intended beneficiary (Respondents’ Br., p. 20) should be rejected.
If the Court adheres to the view that third-party beneficiary status must be
determined from the face of the parties’ agreement -- as we contend it should --
there is no triable issue of fact. The question of whether a party is an intended or
incidental beneficiary of a particular contractual promise can be determined “as a
matter of law” based on the parties’ intentions as expressed in the operative
agreement. See, generally, Fourth Ocean, 66 N.Y.2d at 41, 495 N.Y.S.2d at 3
(affirming lower court’s determination that, as a matter of law, party was not an
intended beneficiary).
D. The City Does Not Dispute That DASNY Can Recover For The Same
Damages And That There Is No Express Language In The Contract
Conferring Intended Third-Party Beneficiary Status Upon The City
In its opening brief, Perkins demonstrated that, based on this Court’s
decisions in Port Chester and Fourth Ocean, third-parties may assert contract
claims only when (1) no one other than the third-party could recover for the
14
promisor’s breach,3 or (2) it is clear from the express language of the contract that
the parties intended it. Opening Br., pp. 30-39. The City does not claim that only
a third-party can recover for Perkins’ alleged breach (because DASNY can); or
that it is clear from the express language of the contract that the parties intended
that the City has contract rights against Perkins.
Perkins demonstrated that DASNY can recover for the City under its
contract the very damages that the City seeks as a purported intended third-party
beneficiary. Opening Br., pp. 33-34. The City does not address, and thus
impliedly concedes, the first prong of this Court’s two part test. Respondents’ Br.,
pp. 16-26. The reason is straightforward: the City cannot collect any unique
damages because all purported losses asserted in the underlying action were
directly incurred by DASNY. Opening Br., p. 34.
The City tacitly admits that it also cannot meet the second prong of this test
by arguing that “consideration of circumstances outside the contract is
permissible” (Respondents’ Br., p. 23) and relying heavily on “other indicia
supporting the City’s intended beneficiary status” (Respondents’ Br., p. 8). See
3 The City incorrectly represents Perkins’ position by contending that “Perkins
urges this Court to cabin the [third-party beneficiary] doctrine so that it applies
only where the contract contains an express statement bestowing third parties with
a right to enforce the contract.” Respondents’ Br., p. 21. Relying on this Court’s
explicit language in Fourth Ocean, Perkins acknowledged that a stranger to a
contract can also become an intended third-party beneficiary if “no one other than
the third party can recover if the promisor breaches the contract.” Opening Br., pp.
32-34.
15
also Respondents’ Br., p. 19 (“[T]he surrounding circumstances leave no doubt
that the City was an intended beneficiary of the contract between DASNY and
Perkins.”). Such indicia and surrounding circumstances are legally insufficient to
demonstrate that the contract clearly evidences an intent by the parties to permit
enforcement by the City. See supra, pp. 7-12. Accordingly, the City has given this
Court no basis to find that the City acquired intended third-party beneficiary status.
Moreover, many of the indicia and surrounding circumstances described in
the City’s brief are based on provisions of the contract between the City and
DASNY -- not the contract between DASNY and Perkins. Other surrounding
circumstances relied on are from litigation affidavits of DASNY employees. See
Respondents’ Br., pp. 8, 9, 10, 20 and 24, citing pages 617-18, 620, 627-28 and
730-32 of the record.
The provisions the City cites in the Perkins contract demonstrate only the
fact that the City was the “end user” of the building, a circumstance which case
law recognizes is insufficient to create third-party beneficiary status. Opening Br.,
pp. 30-32. There is a vast difference between a third-party as the end user (an
incidental beneficiary), and a third-party which has contract enforcement rights (an
intended beneficiary).
16
POINT II
DASNY FAILS TO IDENTIFY ANY RELEVANT AUTHORITY,
EVIDENCE, OR POLICY TO JUSTIFY A NEGLIGENCE CLAIM
ENTIRELY DUPLICATIVE OF ITS BREACH OF CONTRACT CLAIM
DASNY seeks to assert a tort claim in contravention of the long-standing
rule that a tort claim based upon the same facts as a breach of contract claim may
proceed only when (i) the breaching party owed the plaintiff a legal duty that is
independent of the contract, and (ii) the plaintiff’s tort damages are unique or
otherwise different from the alleged contract damages. Opening Br., pp 14-16.
Limiting tort claims to these specific circumstances is extremely important in the
construction industry, because the theory of liability asserted can greatly affect the
apportionment of liability among defendants. See Sommer v. Fed. Signal Corp., 79
N.Y.2d 540, 551, 557, 583 N.Y.S.2d 957, 961, 965 (1992) (discussing the effect
that classification of claims would have on availability of contribution).
DASNY does not identify any countervailing policy to justify why a plaintiff
asserting a breach of contract claim should be permitted to assert a duplicative tort
claim seeking identical damages. Nor does it cite to any case or authority that is on
point or relevant to support its position. And the evidence in the record proves that
DASNY is not seeking different damages under its tort and contract claims; nor
does it dispute that the contract claim could make it whole. Moreover, DASNY
does not dispute that application of the standard rule barring duplicative tort claims
17
would not impinge on the rights of third-parties to bring tort claims or of state and
local authorities to protect the public.
Instead, DASNY erroneously argues that (i) it may assert duplicative tort
and contract claims against Perkins simply by virtue of Perkins’ professional status
as an architect, (ii) the damage caused by Perkins’ alleged breach of contract could
have resulted in catastrophic consequences, giving rise to an independent legal
duty (even though anybody injured as a consequence can assert his or her own
claims in tort), (iii) DASNY’s listing of different damages amounts for its tort and
contract claims in the ad damnum clause of the complaint is sufficient to create a
triable issue as to whether the claims are duplicative (even though documentary
evidence and DASNY’s deposition testimony confirms that the damages sought
are the same), and (iv) the economic loss rule -- a theory not even relied upon by
Perkins -- is inapplicable and insufficient to preclude DASNY from asserting
duplicative tort and contract claims seeking identical damages.4
4 In respondents’ brief, plaintiffs argue that the City’s tort claim (as distinguished
from DASNY’s tort claim) against Perkins is timely and extant, even though the
motion court dismissed the claim as untimely. Respondents’ Br., pp. 27-29, n.7.
Plaintiffs’ argument should be rejected because: (a) the City did not brief the issue
on appeal to the First Department, (b) the First Department did not explicitly
restore the City’s tort claim; (c) the City did not cross-appeal to this Court; and (d)
even if the City’s tort claim had been restored, it should be dismissed as
duplicative for the same reasons as DASNY’s tort claim should be dismissed as
duplicative.
18
A. Perkins’ Status As A Professional Does Not By
Itself Give DASNY The Right To Assert Both Tort
And Contract Claims That Seek Identical Damages
Much of DASNY’s argument is devoted to the notion that professionals such
as an architect always owe a legal duty to a promisee that is independent of their
contractual obligations, and that they may have liability in tort when they violate
professional standards or applicable regulations. This concern is not implicated in
this case.
In fashioning a rule for determining when a professional should be liable for
negligence in addition to contract liability, the Court should look to protect and
balance three groups of interests: the first is the public, which has an interest in
being assured that professionals follow applicable standards. The second is the
plaintiff, which seeks recovery for all of its damages, whether in contract or
tort. The third interest is that of the professional, which should not be liable to the
plaintiff beyond what it contracted for, unless it violates a separate duty and the
injuries exceed or are different from those for which a remedy is provided in the
contract.
When the plaintiff alleges the same damages in tort that are alleged in
contract, the public’s interest is neither promoted nor diminished. Any member of
the public injured as a result of a violation of professional standards (for example, a
pedestrian injured on the street by a falling cornice or an adjacent building
19
damaged) has a remedy in tort against the professional. Second, where there are
no separate damages alleged, the plaintiff has no financial incentive to act as a
“private attorney general” to pursue tort claims in addition to contract claims, and
therefore the public is not benefitted.
Finally, from the perspective of the architect, under existing law (see
Sommer), the architect is already on notice that if it is found to owe an independent
legal duty to a promisee, it may be responsible for damages that exceed
responsibilities covered under the contract. If the rule were that a plaintiff may
recover in a tort for the same damages, the architect’s knowledge that a plaintiff
may pursue a cause of action for negligence that is no different than the contract
claim adds no additional incentive for the architect to perform to a higher standard.
Arguing that Perkins’ status as a professional, by itself, creates an
independent legal duty giving DASNY the right to assert duplicative tort and
contract claims (Respondents’ Br., pp. 30-34), DASNY does not cite to a single
case in which a plaintiff is permitted to assert duplicative tort and contract claims
based on an independent duty arising solely from a defendant’s status as a
professional and nothing more. Instead, DASNY bases its argument on this
Court’s holdings in Brushton-Moira Cent. Sch. Dist. v. Fred H. Thomas Assocs.,
P.C., 91 N.Y.2d 256, 669 N.Y.S.2d 520 (1998), and Sears, Roebuck & Co. v. Enco
Assocs., 43 N.Y.2d 389, 401 N.Y.S.2d 767 (1977), which held, under the
20
circumstances there, that the plaintiff could have sued an architect under either tort
or contract -- but not both.
In Brushton-Moira Cent. Sch. Dist., the plaintiff school district hired the
defendant architect to provide architectural services in connection with renovations
to a high school building, including the replacement of glass windows with
insulated panels. After the project was completed, the insulated panels
recommended by the architect began to bow and deteriorate, and the school district
subsequently sued the architect for breach of contract and professional malpractice.
Significantly, the trial court dismissed the malpractice claim as duplicative of the
breach of contract claim because both claims sought identical damages. 91 N.Y.2d
at 260, 669 N.Y.S.2d at 521. The trial court then dismissed the breach of contract
claim on different grounds. Plaintiff appealed to the Appellate Division, which
affirmed the dismissal of the malpractice claim, reversed and granted judgment to
plaintiff on the contract claim, and remanded the case for a trial on damages. Id. at
260, 669 N.Y.S.2d at 521.
Following the damages trial and a second appeal to the Appellate Division,
in which two Justices dissented, the architect took an appeal as of right to this
Court. Although the central issue before the Court focused on the accrual date, this
Court addressed, as a preliminary matter, the Appellate Division’s earlier finding
that the architect was liable for breach of contract. Citing to Sears, Roebuck, this
21
Court held that “when the rights and obligations of an owner and architect arise out
of their contractual relationship, the owner may sue in contract or tort,” but it did
not say that the owner can sue in both, as DASNY seeks to do here, and it did not
criticize or question the dismissal of the malpractice claim as duplicative of the
contract claim. 91 N.Y.2d at 260-61, 669 N.Y.S.2d at 522 (emphasis added).
Similarly, in Sears, Roebuck -- a case principally concerned with the
appropriate statute of limitations for claims brought by a property owner against an
architect -- this Court held that when the relationship between an owner and
architect “had its genesis in the contract between them . . . the owner may recover
contract damages against the architects either on the theory of breach of a
particular contract provision or on the theory of failure to exercise due care in the
performance of the contract services.” 43 N.Y.2d at 392-93, 401 N.Y.S.2d at 768-
69 (emphases added). Thus, when the plaintiff is seeking only contract damages
against the architect, it may sue in contract or tort, but not both.
Contrary to DASNY’s argument, these cases do not support the position that
an architect’s professional status, by itself, creates a legal duty independent of its
contractual obligations that would permit a plaintiff to evade the rule barring
duplicative tort and contract claims seeking identical damages. This Court’s
decision in Sommer identified several factors or “guideposts” that courts should
consider in analyzing whether a contract party owed another contract party a legal
22
duty independent of its contractual obligations. A party’s professional status is
only one of several factors. Sommer, 79 N.Y.2d at 551, 583 N.Y.S.2d at 961.
Neither of the two cases relied upon by DASNY addresses the Sommer
factors or speaks to how a defendant’s professional status interplays with those
other factors. (In fact, Sears, Roebuck was decided fifteen years prior to Sommer.)
Indeed, DASNY suggests that this Court disregard Sommer altogether. See
Respondents’ Br., p. 34 (“Courts thus have little need to resort to the guideposts
identified in Sommer when confronted with a claim based on an already deeply
rooted common-law duty, like the one that runs from architects to their clients.”).
Even if the architect’s professional status were enough, by itself, to satisfy
the independent legal duty prong of the analysis (and it is not), a duplicative tort
claim must still be dismissed if, as here, the plaintiff seeks identical damages under
the contract claim. As these cases make clear, when a plaintiff is seeking the same
damages under either a tort theory or contract theory, it may assert one claim or the
other, but not both.
B. There Is No Evidence In The Record To Suggest That Perkins’ Alleged
Breach Of Contract Could Have Led To Catastrophic Consequences
Another factor identified in Sommer for determining whether a promisor
owes a promisee a duty independent of their contract -- and the factor most heavily
relied on by both the majority and dissenting opinions below -- is the “catastrophic
consequences” factor, which examines whether the failure to perform under the
23
contract with due care could result in sudden “catastrophic consequences” or an
“abrupt, cataclysmic occurrence” that poses a serious threat to public safety. 79
N.Y.2d at 553, 583 N.Y.S.2d at 962.
At the outset, we note that even were this Court to agree with the majority
below on the issue of “catastrophic consequences” and find a triable issue, that
would not support affirmance. This issue is only relevant to determining whether
there is an independent duty. Reversal is still warranted because, as discussed in
Perkins’ opening brief and throughout this section, no damages are alleged
separate from those for which the contract provides a remedy. Neither the majority
nor the dissent below addressed this point.
As Perkins discussed in its opening brief, every appellate court prior to the
majority’s decision below to have addressed this factor has limited its application
to circumstances in which the harm was sudden and posed an actual threat to the
public. Opening Br., pp. 22-23. Under such a practical and workable application
of this factor, the dissent explained, based on the record, that “no ‘catastrophic’
harm is or could be alleged in this case. The settling of the building took place
gradually over a couple of years and never posed a serious threat to the public’s
safety.” R.14 (Order, Tom, J.P., dissenting).
In response, DASNY argues that the damage to the adjacent property was
“abrupt,” “sudden,” and “unexpected,” and that it “posed a sufficiently serious and
24
concrete threat to public safety” that created a risk of water contamination, unsafe
street conditions, and “potentially threatened the condition of vulnerable hospital
patients and the public’s access to the hospital.” Respondent’s Br., pp. 35-36.
These statements are not only unsupported by the record, but are belied by the
record, which demonstrates that the damage occurred over a period of time, was
limited to property, and was of such a low magnitude that it never did, or could
have, put any person in harm’s way. Opening Br., pp. 10-12.
The facts here are nothing like the facts in Sommer, where a four-alarm fire
“spread out of control” in a 42-story skyscraper and could have easily killed or
injured people in the vicinity of the fire, or the facts in Trustees of Columbia Univ.
in City of N.Y. v. Gwathmey Siegel & Assocs. Architects, 192 A.D.2d 151, 154-55,
601 N.Y.S.2d 116, 118 (1st Dep’t 1993), where the “sudden extremely dangerous
partial collapse of the façade” in the courtyard of Columbia University’s campus
could have struck and killed students and other pedestrians. In analyzing the
“catastrophic consequences” factor under Sommer, courts should be concerned
with and focused on real and actual threats to public safety such as these -- not the
speculative and hypothetical risks put forth by DASNY. Otherwise, any
imaginative attorney could conjure a calamitous scenario out of almost any
allegedly defective work on a construction site.
25
C. Discovery Has Proven That DASNY Seeks Identical Damages
Under Its Tort And Contract Claims, Notwithstanding
The Different Damages Amounts Set Forth In Its Complaint
Whether or not Perkins owes a legal duty to DASNY that is independent of
its contractual obligations is only half of the analysis. Even if DASNY were to
make that showing, it would still have to demonstrate that its tort damages are
different from its alleged contract damages in order to sustain a duplicative tort
claim. This prong of the analysis is critical because it is the difference in damages
that would theoretically incentivize a contract party to carefully perform its duties
so as to avoid any potential tort claims that exposed it to liability beyond that
available in contract. If there is no difference in damages, the public policy
rationale for permitting the assertion of both tort and contract claims ceases to
exist. See Bocre Leasing Corp. v. Gen. Motors Corp. (Allison Gas Turbine Div.),
84 N.Y.2d 685, 690-91, 621 N.Y.S.2d 497, 499-500 (1995) (where alleged
damages are only contractual-based losses, “safety incentive rationale” for
permitting separate tort claims “dissolves”).
In response, DASNY claims that it satisfies this prong of the analysis by
having alleged different damages amounts for its tort ($16 million) and contract
($12 million) claims in the ad damnum clause of the complaint. Respondents’ Br.,
pp. 37-38. However, plaintiffs produced a damages binder during discovery that
detailed all of the damages they are seeking to recover from Perkins, under both its
26
contract and tort claims, which listed a single, total amount of $37,024,428. See
R.351-353 (OCME DNA Lab Summary and supporting documents from plaintiffs’
damages binder, produced in or about February 2012); 359, 363 (Excerpt of
Transcript of Deposition of Edward F. Wagner (“Wagner Tr.”), at 2542, 2558-59)
(describing damages binder). Recognizing that this was the single amount that
plaintiffs were claiming as their universe of damages, the majority below found
that “[t]he cost of fixing the damage to the project site and the adjacent properties
was approximately $37 million.” R.7 (Order).
DASNY states that the “distinct” damage alleged under the tort claim is for
the amounts it paid to repair “property damage beyond the scope of the project
itself to the C&D Building, public roadways, and water and sewer systems.”
Respondents’ Br., p. 38. However, there is nothing “distinct” about these
damages, as plaintiffs’ documents and testimony confirm they are also being
sought under the breach of contract claim. See R.351 (OCME DNA Lab
Summary, which lists damage to both the project site and the adjacent properties as
the basis of plaintiffs’ damages claims against Perkins); 479-480 (Wagner Tr., at
2988-89) (DASNY’s project manager, who helped prepare plaintiffs’ damages
calculations, was not aware of a difference between the damages plaintiffs are
seeking from Perkins under a breach of contract theory and the $37 million in
damages that plaintiffs are seeking from the contractor).
27
These damages were contemplated by the parties and addressed in two
provisions of their contract. First, the parties agreed that any “[e]xtra costs to the
OWNER resultant from design errors or omissions shall be recoverable from the
ARCHITECT and/or its Professional Liability Insurance carrier.” R.138
(DASNY-Perkins Contract at Article XIV). This would include the “extra costs”
that DASNY had to pay to repair the damage done to the adjacent properties.
Second, Perkins would “indemnify and hold harmless” DASNY “against all claims
arising out of the negligent acts, alleged negligent acts, or failure to act” by
Perkins. R.138 (DASNY-Perkins Contract at Article XII). Because the damages
sought “were clearly within the contemplation of the written agreement,” they
should not give rise to a separate tort claim in a breach of contract action. Clark-
Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 390, 521 N.Y.S.2d 653,
657 (1987).
Finally, on the issue of damages, DASNY spends the last few pages of its
brief addressing the claimed inapplicability of the economic loss rule to a tort
claim based on breach of a professional duty.5 But Perkins does not cite to or rely
on the rule. Instead, Perkins argues for the application of a different rule -- that is,
when a plaintiff seeks identical damages under both its tort and contract claims in a
5 This “reflects the principle that damages arising from the failure of the bargained-
for consideration to meet the expectations of the parties are recoverable in contract,
not tort.” Bristol-Myers Squibb, Indus. Div. v. Delta Star, Inc., 206 A.D.2d 177,
181, 620 N.Y.S.2d 196, 198-99 (4th Dep’t 1994).
28
breach of contract action, the tort claim should be dismissed as duplicative. The
rule that Perkins urges this Court to reconfirm is not dependent on whether
damages are classified as economic or non-economic, but only on the identity of
damages between the claims. For example, after determining that the fire alarm
company owed an independent duty of care to the plaintiff in Sommer, this Court
permitted the plaintiff to proceed with its tort claim because the damages it sought
in tort were different than the damages it could recover in contract, due to the
contract’s exculpatory and limitation of liability clauses. 79 N.Y.2d at 554-555,
583 N.Y.S.2d at 962-964. Here, by contrast, the damages that DASNY seeks in
tort are, by plaintiff’s own statements in the record, the same as the damages it
seeks in contract, regardless of how those damages are classified, and its tort claim
should therefore be dismissed as duplicative.
29
CONCLUSION
For the foregoing reasons and the reasons set forth in Perkins’ opening brief,
this Court should reverse the order of the Appellate Division, First Department,
and dismiss Respondent DASNY’s tort claim against Perkins as duplicative of its
contract claim, and dismiss Respondent City of New York’s breach of contract
claim against Perkins because the City is not an intended third-party beneficiary of
the contract between DASNY and Perkins.
Dated: New York, New York
May 5, 2017
FLEMMING ZULACK
WILLIAMSON ZAUDERER LLP
By: _____________________________
Mark C. Zauderer
Jason T. Cohen
Grant A. Shehigian
One Liberty Plaza
New York, New York 10006
Tel: (212) 412-9500
Fax: (212) 964-9200
NEW YORK STATE COURT OF APPEALS
CERTIFICATE OF COMPLIANCE
I hereby certify pursuant to 22 NYCRR PART 500.1(j) that the foregoing brief was
prepared on a computer using Microsoft Word.
Type. A proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point size: 14
Line spacing: Double
Word Count. The total number of words in this brief, inclusive of point headings
and footnotes and exclusive of pages containing the table of contents, table of
citations, proof of service, certificate of compliance, corporate disclosure
statement, questions presented, statement of related cases, or any authorized
addendum containing statutes, rules, regulations, etc., is 6,954 words.
Dated: May 5, 2017
GRANT A. SHEHIGIAN
FLEMMING ZULACK WILLIAMSON
ZAUDERER LLP
Attorney for Defendant-Appellant
One Liberty Plaza, 35th Floor
New York, New York 10006
Tel.: (212) 412-9500
Fax: (212) 964-9200