The following e-filed documents, listed by NYSCEF document number (Motion 005) 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172 were read on this motion to/for PARTIAL SUMMARY JUDGMENT. DECISION + ORDER ON MOTION T his action arises out of a pipe burst incident in a luxury residential condominium owned by the plaintiff The Charles Condominiums, LLC (“Charles” or the plaintiff). In its complaint, Charles alleges that it sustained millions of dollars in damages as the result of the incident. Defendant Victor RPM First, LLC (“Victor” or the defendant) is the Development Manager for the development and construction of the condominium under the parties’ Amended and Restated Development Management Agreement. Plaintiff now moves for partial summary judgment pursuant to CPLR 3212 solely on the issue of Victor’s liability for breach of contract. Victor opposes the motion. For the reasons below, the motion is denied. Background The following facts are taken from the parties’ Rule 19-a statements, affidavits, and exhibits. They are not in dispute unless otherwise noted. The Development Agreement On January 17, 2013, Charles and Victor entered into the Amended and Restated Development Management Agreement (Development Agreement or Agreement) regarding the construction of a luxury high rise condominium in Manhattan’s Upper East Side neighborhood (the Condominium or the Project) (NYSCEF # 118, Development Agreement). The Development Agreement defines Victor as the “Development Manager” and Charles as the “Owner” (id. at Preamble). Under the Agreement, the affiliates of Charles provided substantially all the equity capital for the Project, while Victor was to “undertake and complete all tasks necessary to construct a luxury residential condominium” (id. at Third WHEREAS Clause). Specifically, section 2 states: Development Manager shall at Owner’s expense perform, or cause to be performed, all of the work necessary to construct and build out the Project, and supply all of the materials and finishings in connection therewith in accordance with the plans and specifications… (id. §2). Section 5 discusses the performance of the construction. As relevant here, section 5(a) states: Development Manager shall promptly cause the commencement and diligent continuance of the construction of the Project Work by Contractor under the Construction Contract until completion… (id. §5(a)). Section 5(b) further states that “Development Manager shall be solely responsible for the supervision of all of the Project Work” and that “[a]ny appropriate corrections required by Owner shall be promptly performed” (id. §5(b)). Finally, section 5(d) states that “[t]he Project Work shall be deemed ‘Complete’ when all of the conditions specified in the definition of ‘Complete the Project’ in the Construction Loan Documents have been met” (id. §5(d)). The 2016 Burst Pipe Incident In July 2016, a pipe on the 16th floor of the Condominium burst, causing a leak of water and glycol throughout some units (“the 2016 Burst Pipe Incident” or “the Incident”) (NYSCEF # 116, Michael Konig Aff 18; NYSCEF # 123, Exh F of Konig Aff at 46). RAND Engineering & Architecture DPC (RAND), Charles’ engineer, and Cumming Corporation, Charles’ project manager, issued reports indicating that the Condominium suffered from construction defects (NYSCEF # 116
20-29; see NYSCEF #s 120-124, Exhs D, E, F, G of Konig Aff). RAND detailed specific defects relating to the pipe insulation system and the roof, railings, door clearances and sprinkler systems in its reports (NYSCEF # 116
