Keywell L.L.C. v. Pavilion Building Installation Systems LTD. et al

Filing 207

DECISION AND ORDER GRANTING Zehn Burhan Uzman's 176 Motion for Summary Judgment; GRANTING Defendants Douglas Barrett and Barrett Crane Design & Engineering's 177 Motion for Summary Judgment; DISMISSING all cross claims; DIRECTING the Clerk of Court to close this case. Signed by William M. Skretny, United States District Judge on 1/31/2017. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KELLY BEAUDIN STAPLETON, solely in her
capacity as trustee of the SGK Ventures, LLC
Liquidating Trust,
Plaintiff,
v.

DECISION AND ORDER
09-CV-934S

PAVILION BUILDING INSTALLATION
SYSTEMS, LTD., ZEHN BURHAN UZMAN, LI
ZHI CAO, BARRETT CRANE DESIGN &
ENGINEERING, and DOUGLAS BARRETT,
Defendants.

I. INTRODUCTION
Plaintiff Kelly Beaudin Stapleton, in her capacity as Trustee of the SGK Ventures,
LLC Liquidating Trust (“Plaintiff”), brings this diversity action for breach of contract and
professional negligence against Defendants Pavilion Building Installation Systems, Ltd.
(“Pavilion”), Li Zhi Cao (“Cao”), Douglas Barrett and his company, Barrett Crane Design
& Engineering (together, “Barrett”), and Zehn Burham Uzman (“Uzman”). 1

Default

judgments were entered against Defendants Pavilion and Cao on April 22, 2014. (See
Docket No. 149.)

The remaining defendants, Uzman and Barrett, now move for

summary judgment on the claims against them. For the reasons discussed below,
Uzman and Barrett’s motions for summary judgment are granted and the claims against
them are dismissed.

1

Answers containing crossclaims against co-defendants for indemnification and contribution were filed by
Uzman (Docket. No. 76), Pavilion (Docket No. 77), and by Barrett (Docket No. 80). Pavilion’s answer and
cross-claim were struck as part of the default judgment against it. (See Docket No. 133.)

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II. BACKGROUND 2
Plaintiff brings this action on behalf of Keywell L.L.C. (“Keywell”), a now-bankrupt
and defunct Illinois limited liability company. 3

During the relevant period, Keywell

operated a scrap metal recycling business throughout the United States, and sought a
permanent, lightweight building to cover certain scrap metal and thereby reduce
pollutant run-off at its facility in Frewsberg, NY.

Defendant Pavilion is a Canadian

company engaged in the design, marketing, and sale of lightweight structures. On
September 27, 2007, representatives from Keywell and Pavilion executed a written
contract (the “Master Agreement”) providing that Pavilion would design, manufacture,
and erect such a structure for Keywell in Frewsberg.
Uzman, a professional engineer licensed in New York State, was retained by
Pavilion as the engineer of record for the structure and was responsible for reviewing
engineering drawings to ensure they complied with applicable New York State code.
Pavilion also retained Barrett, another New York State licensed professional engineer,
to review the engineering drawings. Uzman and Barrett both reviewed the plans, and
both were aware that they reflected a structure to be built for Keywell in Frewsberg.
However, neither had any contact with Keywell, nor were they paid by Keywell. Instead,
all expenses incurred in connection with the structure were to be paid by Keywell to
Pavilion, and Pavilion paid all subcontractors (including Barrett and Uzman) directly.
Barrett and Uzman worked for Pavilion as independent contractors and seem to have
had only oral agreements with Pavilion for their services. They were not signatories to
the Master Agreement, nor are they mentioned in that document. However, among its
2

Facts are undisputed unless otherwise noted.
Following Keywell’s bankruptcy, Ms. Beaudin Stapleton was substituted as Plaintiff. (See Docket No.
167.)
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other terms, the Master Agreement states “the term Contractor”—referring to Pavilion—
“[is] to include any applicable subcontractor.”
The structure was completed in November 2008.

Plaintiff alleges that the

structure exhibited significant structural flaws and was under-designed for the
substantial wind gusts and heavy snowfalls common in Frewsberg. Keywell notified
Pavilion of cracking in the structure and tears in the fabric covering that occurred after
the building was complete, but Pavilion failed to correct the defects. Keywell eventually
removed the fabric covering from structure, rendering it unable to perform its intended
use. On October 29, 2009, Keywell commenced this action, alleging the structure was
inadequately designed and was unable to withstand the elements, became damaged,
failed to perform as anticipated, and is a total loss. 4 Keywell seeks more than $300,000
in damages from Barrett and Uzman, which include the purchase price of the structure,
as well as the price of removal.
III. DISCUSSION
In its Amended Complaint, Plaintiff claims that Barrett and Uzman are liable for
breach of the Master Agreement and for professional negligence. (See Docket No. 73.)
Barrett and Uzman move for summary judgment and dismissal of both counts arguing,
in essence, that they were not in privity with Plaintiff and therefore cannot be liable on
these claims.
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v.
4

Barrett and Uzman contend that the structure as built does not reflect the drawings they advised on and
which Uzman signed, because it lacked “end-walls” that they contend were crucial for stability. Plaintiff
contends that the structure would have been inadequate with or without the end-walls.

3

Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A court’s function on a summary
judgment motion “is not to resolve disputed questions of fact but only to determine
whether, as to any material issue, a genuine factual dispute exists.” Kaytor, 609 F.3d at
545 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986)). “A dispute regarding a material fact is genuine ‘if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.’” Weinstock
v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2003) cert. denied, 540 U.S. 811 (2003)
(quoting Anderson, 477 U.S. at 248). A court must also “construe the facts in the light
most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp.,
352 F.3d 775, 780 (2d Cir. 2003).
A.

Breach of Contract
Under New York law, a party alleging a breach of contract must establish (1) the

existence of a contract; (2) performance of the contract by one party; (3) breach by the
other party; and (4) resulting damages. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d
522, 525 (2d Cir. 1994). Uzman and Barrett dispute the first element, arguing that the
claim fails as a matter of law because they were not parties to the Master Agreement.
“[A]bsent a contractual relationship there can be no contractual remedy.” Suffolk Cnty.
v. Long Island Lighting Co., 728 F.2d 52, 63 (2d Cir. 1984). Such a relationship exists if
the plaintiff is in privity of contract with the defendant or is a third-party beneficiary of the
contract. Hillside Metro Associates, LLC v. JPMorgan Chase Bank, Nat. Ass’n, 747
F.3d 44, 49 (2d Cir. 2014), cert. denied, 135 S. Ct. 1399, 191 L. Ed. 2d 360 (2015).
Plaintiff acknowledges that Barrett and Uzman were not parties to the Master

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Agreement, but argues that Barrett and Uzman were in the “functional equivalent of
privity” or, in the alternative, that Keywell was a third party beneficiary to the contracts
Uzman and Barrett each had with Pavilion. For the reasons discussed below, this Court
agrees with Uzman and Barrett that they were not in privity with Keywell under the
Master Agreement. Further, although Keywell may have been a third-party beneficiary
of Uzman and Barrett’s contracts with Pavilion, the breach of contract claim must still be
dismissed because Plaintiff failed to plead such a theory of liability in the Amended
Complaint.
“It is hornbook law that a non-signatory to a contract cannot be named as a
defendant in a breach of contract action unless [he] has thereafter assumed or been
assigned the contract.” Crabtree v. Tristar Auto. Group, Inc., 776 F. Supp. 155, 166
(S.D.N.Y. 1991).

New York law permits a limited exception to this rule for non-

signatories who are in the “functional equivalent of privity.” In re Cavalry Constr., Inc.,
No. 07-22707 (RDD), 2013 WL 5682741, at *3-4 (Bankr. S.D.N.Y. Oct. 18, 2013)
(noting that the exception is “well established” in tort but recognizing that “several cases
have applied the doctrine to breach of contract claims”).

That limited exception is

sometimes applicable in cases similar to this, where the owner of a property sues an
engineer, architect, or some other subcontractor with whom it had no direct contractual
relationship. See, e.g., Aktas v. JMC Dev. Co., Inc., 877 F. Supp. 2d 1, 27 (N.D.N.Y.
2012); aff’d, 563 F. App’x 79 (2d Cir. 2014) (“Courts in New York have routinely,
‘refused to dismiss breach of contract causes of action asserted by property owners
against subcontractors who performed construction services on their property’.” (quoting
Logan-Baldwin v. L.S.M. Gen. Contractors, Inc., 94 A.D.3d 1466, 942 N.Y.S.2d 718,

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721 (4th Dep’t 2012))),; see also Town of Oyster Bay v. Lizza Indus., Inc., 22 N.Y.3d
1024, 1030, 981 N.Y.S.2d 643 (N.Y. 2013) (“Even if the plaintiff is not a party to the
underlying construction contract, the claim may accrue . . . where the plaintiff is not a
‘stranger to the contract,’ and the relationship between the plaintiff and the defendant is
the ‘functional equivalent of privity.’” (quoting City Sch. Dist. of City of Newburgh v.
Hugh Stubbins & Assocs., Inc., 85 N.Y.2d 535, 538-39, 626 N.Y.S.2d 741, 650 N.E.2d
399 (N.Y. 1995))). It is properly applied where, “despite the lack of a formal contract[, . .
. ] an owner and subcontractor engage more directly.” 5 Greg Beeche Logistics, LLC v.
Skanska USA Bldg., Inc., No. 12-CV-11121-DJC, 2015 WL 5156553, at *5 (D. Mass.
Sept. 2, 2015) (applying New York law, internal citation omitted).

Under those

circumstances, Courts have found both the functional equivalence of privity and third
party beneficiary status for the owner of the property. See, e.g., Aktas, 877 F. Supp. 2d
at 27; Town of Oyster Bay, 22 N.Y.3d at 1030.
However, the exception appears to apply only in one direction: a property owner
may sue a subcontractor, but a subcontractor is generally not found to be in privity or a
third party beneficiary to a property owner. See 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) (holding that surety
could assert general contractor’s claim against subcontractor because the chain of
agreements from the general contractor down to the subcontractor provided the
functional equivalent of privity, but noting that “[c]onversely, a subcontractor is not
normally a third-party beneficiary of the contract between the owner and the general
contractor”); R.H. Sanbar Projects, Inc. v. Gruzen P’ship, 538 N.Y.S.2d 532, 534 (1st
Dep’t 1989) (concluding that cases barring subcontractors from suing owners for
5

A direct relationship has not been alleged between Barrett or Uzman and Keywell.

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payment based on an agreement between the owner and the general contractor are
“inapposite” because “[h]ere, to the contrary, it is the owner claiming to be a third-party
beneficiary”).

This is because the privity or beneficiary status flows to the owner

through the agreement between the contractor and subcontractor, rather than through
the agreement between the owner and the contractor. See In re Cavalry Constr., Inc.,
2013 WL 5682741, at *5.
Accordingly, in order for Keywell or its successor to successfully state a claim for
breach of contract against Barrett or Uzman, it must show it is in privity with the
subcontract entered into between Barrett or Uzman and Pavilion. However, the Breach
of Contract claim in Plaintiff’s Amended Complaint focuses solely on the Master
Agreement between Keywell and Pavilion, and makes no mention of Uzman or Barrett’s
subcontracts with Pavilion. Further, Plaintiff’s only evidence in support of her argument
that Uzman and Barrett are bound by the Master Agreement is the fact that “Contractor”
is defined in that contract to include all subcontractors. However, this clause cannot be
enforced against Uzman and Barrett without additional evidence of privity. See CDJ
Builders Corp. v. Hudson Grp. Const. Corp., 67 A.D.3d 720, 889 N.Y.S.2d 64, 65 (2d
Dep’t 2009) (“Liability for breach of contract does not lie absent proof of a contractual
relationship or privity between the parties.” (quoting Hamlet at Willow Creek Dev. Co.,
LLC v. Ne. Land Dev. Corp., 64 A.D.3d 85, 878 N.Y.S.2d 97, 112 (2d Dep’t 2009)))
Courts have found privity to flow from the prime contract between a property owner and
a general contractor—such as the Master Agreement—but only where the subcontract
also specifically referred to and incorporated the prime contract. See Brownell Steel,
Inc., 28 A.D.3d at 843, 813 N.Y.S.2d at 551. For example, in Brownell, a third-party

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beneficiary relationship was established because the court found that the agreement
between the contractor and subcontractor specifically identified the party for whom the
work was being performed, incorporated the terms of the prime contract into the
subcontract, and provided an assumption of the responsibilities and liabilities from the
prime contract into the subcontract. Id. No such clear intention that the work arising out
of the subcontract was to be performed for the Pavilion’s benefit has been alleged here.
Although Plaintiff argues in its opposition papers that it is the third-party
beneficiary of Uzman and Barrett’s subcontracts with Pavilion, this is a new theory of
liability, one which is entirely absent from the Amended Complaint. “An opposition to a
summary judgment motion is not the place for a plaintiff to raise new claims.” Lyman v.
CSX Transp., Inc., 364 Fed. App’x 699, 701 (2d Cir. 2010) (quoting 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1183, at 23 n. 9 (3d ed.
2004)); Brandon v. City of N.Y., 705 F.Supp.2d 261, 278 (S.D.N.Y. 2010) (“It is black
letter law that a party may not raise new claims for the first time in opposition to
summary judgment.”); Heletsi v. Lufthansa German Airlines, Inc., No. 99CV4793(SJ),
2001 WL 1646518, at *1 n. 1 (E.D.N.Y. Dec. 18, 2001) (“A party cannot amend their
complaint simply by alleging new facts and theories in their memoranda opposing
summary judgment.”). Plaintiff’s discovery did not reveal an intention to make claim
with respect to Barrett or Uzman’s contract with Pavilion, and Plaintiff’s opposition to
Uzman’s earlier Motion to Dismiss argued only that Uzman was a party to the Master
Agreement and had breached that contract. (See Docket No. 96 at 1-2.) If Plaintiff had
pled a breach of Uzman and Barrett’s contracts with Pavilion, such a claim may have
been successful. This Court cannot speculate however, as the record has insufficient

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evidence on that point.

See In re Cavalry Constr., Inc., 2013 WL 5682741, at *5

(“whether it’s a functional equivalent [of privity] analysis or a third-party beneficiary
analysis, it has to state what the terms of the contract are, and there’s no evidence in
the record as to what those terms are” (alterations in original)).
Accordingly, this Court must dismiss the breach of contract claim. There is no
functional equivalent of privity nor a third-party beneficiary relationship created by the
Master Agreement, and Plaintiff does not plead a breach of Barrett or Uzman’s
subcontracts.
B.

Professional Negligence and Negligent Representation
Plaintiff next alleges professional negligence against Barrett and Uzman. Barrett

and Uzman have both moved for summary judgment, arguing that any negligence claim
is barred by the economic loss doctrine because the parties were not in privity.
New York’s economic loss doctrine generally bars recovery in tort for purely
economic losses caused by a defendant’s negligence. See, e.g., Travelers Cas. & Sur.
Co. v. Dormitory Auth.-State of N.Y., 734 F. Supp. 2d 368, 378 (S.D.N.Y. 2010). A
court determining whether the economic loss doctrine applies “should consider the
nature of the defect, the injury, the manner in which the injury occurred, and the
damages sought.”

Hodgson, Russ, Andrews, Woods & Goodyear, LLP v. Isolatek

Intern. Corp., 300 A.D.2d 1051, 1052, 752 N.Y.S.2d 767, 769 (4th Dep’t. 2002).
“Critical to a determination of whether a tort claim is barred by the economic loss
doctrine is whether damages are sought for the failure of the product to perform its
intended purpose, in which case recovery is barred by the economic loss doctrine, or for
direct and consequential damages caused by a defective and unsafe product.” Praxair,

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Inc. v. General Insulation Co., 611 F. Supp. 2d 318, 326 (W.D.N.Y. 2009) (citing
Hodgson, Russ, Andrews, 300 A.D.2d at 1052-53, 752 N.Y.S.2d at 769). Thus, for
example, if the structure at issue had fallen and injured a worker or caused damage to
one of Keywell’s vehicles, then recovery might be appropriate.

However, because

Plaintiff seeks only damages to the structure itself arising from the alleged faulty design
and construction, the economic loss doctrine bars recovery under the theory of
professional negligence.
Plaintiff argues the economic loss doctrine does not apply in professional
negligence cases. However, as is apparent in the cases cited by Plaintiff, this exception
is relevant only where a valid contract exists between the plaintiff and the allegedly
negligent professional. See, e.g., Hydro Investors, Inc. v. Trafalgar Power Inc., 227
F.3d 8, 18 (2d Cir. 2000); Valentini v. Citigroup, Inc., 837 F. Supp. 2d 304, 328
(S.D.N.Y. 2011); Nebraskaland, Inc. v. Sunoco, Inc., No. 10-1091, 2011 WL 6131313,
at *4 (E.D.N.Y. July 13, 2011). “The rule which bars recovery for economic losses in the
absence of privity as applied to actions against architects or engineers is . . . settled as
a matter of New York law.” Key Int'l Mfg., Inc. v. Morse/Diesel, Inc., 142 A.D.2d 448,
453, 536 N.Y.S.2d 792 (2d Dep't 1988) (emphasis added). Having found that there is
no “functional equivalent of privity” under the Master Agreement so as to survive a
breach of contract claim, this Court finds that there is also no basis for a professional
negligence claim under that document.
A second, more limited, exception to New York’s barrier against recovery of
economic loss exists for claims of negligent misrepresentation, a cause of action which

10

Plaintiff does not explicitly plead. 6 Under this theory, privity remains a requirement:
“before a party may recover in tort for pecuniary loss sustained as a result of another’s
negligent misrepresentations there must be a showing that there was either actual
privity of contract between the parties or a relationship so close as to approach that of
privity.” Parrott v. Coopers & Lybrand, L.L.P., 95 N.Y.2d 479, 483, 718 N.Y.S.2d 709,
741 N.E.2d 506 (N.Y. 2000) (citation omitted). The Court of Appeals determined that a
relationship will be “so close as to approach that of privity” if the plaintiff can
demonstrate:
(1) awareness that the reports were to be used for a particular purpose or
purposes; (2) reliance by a known party or parties in furtherance of that
purpose; and (3) some conduct by the defendants linking them to the party
or parties and evincing defendant's understanding of their reliance.
Ossining Union Free Sch. Dist. v. Anderson LaRocca Anderson, 73 N.Y.2d 417, 425,
539 N.E.2d 91, 95 (N.Y. 1989) (citing Credit Alliance Corp. v. Arthur Andersen & Co., 65
N.Y.2d 536, 551, 483 N.E.2d 110, 118, amended, 66 N.Y.2d 812, 489 N.E.2d 249 (N.Y.
1985)). These three criteria, taken jointly, require Plaintiff to demonstrate “a clearly
defined set of circumstances which bespeak a close relationship premised on knowing

6

It may seem contradictory to evaluate negligent representation after rejecting Plaintiff’s third-party
beneficiary theory above. The difference lies in the facts pled by Plaintiff rather than her legal theories.
The facts pled in her breach of contract claim relate only to the Master Agreement, and not to a breach of
the agreements between Barrett and Pavilion, or Uzman and Pavilion. Not having established the terms
of these contracts, Plaintiff could not then allege that she was an intended beneficiary or that there had
been a breach. However, the facts alleged with respect to her professional negligence claim are
essentially those that might have supported a negligent misrepresentation claim. See Pioneer
Commercial Funding Corp. v. United Airlines, Inc., 122 B.R. 871, 887 (S.D.N.Y. 1991) (“[T]he Federal
Rules of Civil Procedure only require the pleading of a claim and the specific label given to a cause of
action is unimportant.”). Accordingly, this Court evaluates liability with respect to both negligence theories
based on the facts as alleged in the Amended Complaint and as discussed in the motion papers. See
Newman v. Silver, 713 F.2d 14, 15 n. 1 (2d Cir. 1983) (sustaining district court’s application of legal
theory not expressly raised in the complaint because factual basis for theory had been pled); see also
Ocaso, S.A., Compania de Seguros y Reaseguros v. P.R. Mar. Shipping Auth., 915 F. Supp. 1244, 1253
(D.P.R. 1996) (“[E]ven though the Court will liberally construe the substance of the information provided in
the complaint and in particular situations may not require that the specific legal theory be identified, at
least some notion of the grounds justifying the remedies sought in the proceedings must appear.”).

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reliance.” Parrott, 95 N.Y.2d at 484, 741 N.E.2d at 508; see also MS P’ship v. Wal-Mart
Stores, Inc., 294 A.D.2d 853, 741 N.Y.S.2d 793, 794 (4th Dep’t 2002) (“For defendant to
be liable, reliance by plaintiff upon the representation must be the end and aim of the
transaction, rather than an indirect or collateral consequence of it.” (internal citation and
punctuation omitted)).
As it is a limited exception to the general rule against recovery of economic loss,
the tripartite standard is applied strictly by New York courts, and a plaintiff pursuing a
negligent misrepresentation claim faces a “heavy burden.” Sec. Inv’r Prot. Corp. v.
BDO Seidman, LLP, 222 F.3d 63, 73 (2d Cir. 2000); see also Sec. Pac. Bus. Credit, Inc.
v. Peat Marwick Main & Co., 79 N.Y.2d 695, 702, 586 N.Y.S.2d 87, 597 N.E.2d 1080
(N.Y. 1992) (professionals may “incur liability to injured third parties who rely on their
work,” but only “[i]n ‘carefully circumscribed’ instances” (citation omitted)); Sykes v. RFD
Third Ave. 1 Assocs., LLC, 67 A.D.3d 162, 165, 884 N.Y.S.2d 745 (1st Dep’t 2009),
aff’d, 15 N.Y.3d 370, 938 N.E.2d 325 (N.Y. 2010) (“The New York Court of Appeals
takes a rather cautious approach to determining whether a relationship necessary to
support a claim for negligent misrepresentation exists.”).

Not only is recovery of

economic loss unavailable solely on the basis that a plaintiff was “foreseeable,” but the
New York Court of Appeals has “‘rejected even a somewhat narrower rule that would
permit recovery where the reliant party or class of parties was actually known or
foreseen’ but the individual defendant’s conduct did not link it to that third party.”
Parrott, 95 N.Y.2d at 485, 718 N.Y.S.2d 709, 741 N.E.2d 506 (quoting Ossining, 73
N.Y.2d at 425, 539 N.E.2d 91).

Therefore, “[a]n allegation that the defendant

participated in the design, construction, or supervision of construction is not enough to

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give rise to a duty of care; instead, the plaintiff must show that the functional equivalent
of privity of contract arose between plaintiff and defendant as a result of the defendant’s
actions.” In re Sept. 11 Prop. Damage & Bus. Loss Litig., 481 F. Supp. 2d 253, 260
(S.D.N.Y. 2007) (emphasis added).
While there are disputed issues of facts as to the awareness and reliance
elements of the tripartite test, it is undisputed that there was no contact between either
Barrett or Uzman and Keywell. Both Barrett and Uzman dealt only with Pavilion, were
paid by Pavilion, and had agreements only with Pavilion. Although both Barrett and
Uzman were aware, or are alleged to have been aware, that the structure was being
built for Keywell, and that it is foreseeable that their work would be relied on by Keywell,
that alone is insufficient to satisfy the standard of negligent misrepresentation. See
Parrott, 95 N.Y.2d at 485, 718 N.Y.S.2d 709, 741 N.E.2d 506. Because there was no
conduct by Uzman or Barrett linking them to Keywell, there is no privity and can be no
claim for economic loss. See Ossining, 73 N.Y.2d at 425; see also, Port Auth. v. Rachel
Bridge Corp., 192 A.D.2d 489, 490, 597 N.Y.S.2d 35, 36 (1st Dep’t 1993) (dismissing
action where plaintiff failed to establish that its relationship “sufficiently approached the
functional equivalent of contractual privity” required to hold professional liable).
Accordingly, the professional negligence claim must also be dismissed.
IV. CONCLUSION
The Court finds that there are no material issues of disputed fact as to whether
there was a contractual relationship between the parties, nor as to the existence of a
functional equivalent of privity so as to give rise to a claim of professional negligence.
Defendants Uzman and Barrett’s motions for summary judgment are granted.

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V. ORDERS
IT HEREBY IS ORDERED that Defendant Zehn Burhan Uzman’s Motion for
Summary Judgment (Docket No. 176) is GRANTED;
FURTHER, that Defendants Douglas Barrett and Barrett Crane Design &
Engineering’s Motion for Summary Judgment (Docket No. 177) is GRANTED;
FURTHER, that all cross claims are dismissed;
FURTHER, that the Clerk of Court is directed to close this case.
SO ORDERED.
Dated: January 31, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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