What did the court decide?

The appellate court affirmed denial of Weatherseal's motion to dismiss, allowing the unit owners' negligence claim for property damage to proceed.

Who is affected by this decision?

The condominium unit owners (plaintiffs) and defendant Weatherseal are directly affected because the negligence claim against Weatherseal will move forward in the trial court.

Why can the owners sue Weatherseal even though work was covered by a contract?

The court found the complaint plausibly alleges Weatherseal's actions may have created or increased an unreasonable risk of harm, which is a recognized exception permitting tort claims by third parties for property damage.

What happens next in the case?

The case returns to the trial court to continue through discovery and further litigation on the negligence claim against Weatherseal.

Owens v. New Empire Corp.

Docket Index No. 654796/23|Appeal No. 6426|Case No. 2024-05097|

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

CivilAffirmed

Filed: Apr 21, 2026 · 1 week ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Disposition: Affirmed
Citation: 2026 NY Slip Op 02376
Docket numbers: Index No654796/23Appeal No6426Case No2024-05097

Appeal from denial of a CPLR 3211(a)(7) motion to dismiss a negligence cause of action in a condominium owners' property-damage case

Summary

The Appellate Division, First Department affirmed a Supreme Court order denying defendant US Weatherseal Windows & Doors Operation Inc.'s motion to dismiss a negligence claim brought by condominium unit owners. The plaintiffs allege Weatherseal negligently designed, manufactured, installed, and attempted to repair windows, causing sash sealing failures and recurring water leaks that damaged interior property. The court held that, at this early stage, plaintiffs plausibly alleged an exception to the general rule barring third-party liability under contract because Weatherseal may have created or increased an unreasonable risk of harm, allowing the property-damage negligence claim to proceed.

Issues Decided

Whether plaintiffs plausibly alleged an exception to the general rule that contractual obligations do not create tort liability in favor of third parties
Whether Weatherseal's alleged design, installation, and repair conduct may have created or increased an unreasonable risk of harm sufficient to state a negligence claim for property damage

Court's Reasoning

The court relied on established New York precedent recognizing three exceptions to the rule that contractual duties do not impose tort liability on behalf of third parties. At the motion-to-dismiss stage, plaintiffs alleged facts showing Weatherseal's design, installation, and repair work could have created or increased an unreasonable risk of harm. Because that exception is not limited to personal injury claims and applies to property damage, the complaint sufficiently pleads a viable negligence cause of action to survive dismissal.

Authorities Cited

Stiver v Good & Fair Carting & Moving, Inc.9 NY3d 253 (2007)
Espinal v Melville Snow Contractors98 NY2d 136 (2002)
Powell HIS Contractors, Inc.75 AD3d 463 (1st Dept 2010)
Karydas v Ferrara-Ruurds142 AD3d 771 (1st Dept 2016)

Parties

Respondent: John Owens et al.
Appellant: US Weatherseal Windows & Doors Operation Inc.
Defendant: New Empire Corp.
Judge: Suzanne Adams
Judge: Renwick, P.J.
Judge: Friedman
Judge: Gesmer
Judge: Pitt-Burke
Judge: Hagler

Key Dates

Decision date: 2026-04-21
Lower court order entered: 2024-07-17

What You Should Do Next

1
Proceed with discovery
Plaintiffs should continue fact and expert discovery to develop evidence of the alleged defective design, installation, and repairs and the resulting property damage.
2
Prepare for trial litigation
Both parties should prepare motions, expert reports, and trial strategy now that the negligence claim survives dismissal.
3
Consider interlocutory review carefully
If Weatherseal believes there are reviewable issues, it may consult counsel about possible further appellate remedies, but the appellate court has already resolved the dismissal motion.

Frequently Asked Questions

What did the court decide?: The appellate court affirmed denial of Weatherseal's motion to dismiss, allowing the unit owners' negligence claim for property damage to proceed.
Who is affected by this decision?: The condominium unit owners (plaintiffs) and defendant Weatherseal are directly affected because the negligence claim against Weatherseal will move forward in the trial court.
Why can the owners sue Weatherseal even though work was covered by a contract?: The court found the complaint plausibly alleges Weatherseal's actions may have created or increased an unreasonable risk of harm, which is a recognized exception permitting tort claims by third parties for property damage.
What happens next in the case?: The case returns to the trial court to continue through discovery and further litigation on the negligence claim against Weatherseal.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Owens v New Empire Corp. - 2026 NY Slip Op 02376

Owens v New Empire Corp.

2026 NY Slip Op 02376

April 21, 2026

Appellate Division, First Department

John Owens et al., Respondents,

New Empire Corp., et al., Defendants, US Weatherseal Windows & Doors Operation Inc., Appellant.

Decided and Entered: April 21, 2026

Index No. 654796/23|Appeal No. 6426|Case No. 2024-05097|

Before: Renwick, P.J., Friedman, Gesmer, Pitt-Burke, Hagler, JJ.

Sheeley LLP, New York (Jon D. Lichtenstein of counsel), for appellant.

Bergstein Flynn Knowlton & Pollina PLLC, New York (Bradley P. Pollina of counsel), for respondents.

Order, Supreme Court, New York County (Suzanne Adams, J.), entered on or about July 17, 2024, which denied the motion of defendant US Weatherseal Windows & Doors Operation Inc. under CPLR 3211(a)(7) to dismiss plaintiffs' eleventh cause of action for negligence, unanimously affirmed, with costs.

Plaintiffs, unit owners of a condominium, alleged that Weatherseal negligently designed, manufactured, and installed the windows for the building with the result that the sash does not seal tightly against the frame, and that Weatherseal made multiple visits to the affected units but failed to cure the defect
.
The alleged negligence in design
,
installation and faulty repairs of the windows caused persistent water leaks that damaged the drywall and hardwood floors of the affected units.

Weatherseal's motion to dismiss plaintiffs' sole cause of action against it was properly denied. Although a contractual obligation generally does not create liability in favor of a third party, there are three recognized exceptions to this general rule (
see Stiver v Good & Fair Carting & Moving, Inc
., 9 NY3d 253, 257 [2007];
Espinal v Melville Snow Contrs
., 98 NY2d 136, 138 [2002]). Here, plaintiffs have sufficiently alleged facts to show that, at this pre-discovery stage, an exception applies in that Weatherseal may have "create[d] an unreasonable risk of harm to others" or "increased that risk" in its design, installation and repair of the windows (
Powell HIS Contrs., Inc.,
75 AD3d 463, 464 [1st Dept 2010]). This exception to the general rule is not limited to personal injury actions and extends to actions involving property damage (
see

Karydas v Ferrara-Ruurds
, 142 AD3d 771, 772 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 21, 2026