ADDITIONAL CASES Woods Bagot Architects, P.C., Defendant/Third-Party Plaintiff v. JFG Architects, Third-Party Defendants Amtrust Realty Corp. and 203 Jay St., Defendants/Third-Party Plaintiffs v. Bravo Builders, LLC., Third-Party Defendant MEMORANDUM & ORDER Pending before the court are Magistrate Judge James R. Cho’s Report and Recommendation (“R&R”) on Defendant/Third-Party Plaintiff Woods Bagot Architects, P.C.’s (“Woods Bagot”) motion for leave to amend its Third-Party Complaint, and Woods Bagot’s Objections to that R&R. (See Not. of Mot. to Amend (Dkt. 118); R&R dated June 14, 2024 (Dkt. 135) (“R&R”); Objections to R&R (Dkt. 138).) For the reasons stated below, the R&R is ADOPTED in full. I. BACKGROUND As discussed in detail in the court’s prior Memorandum & Order, the court assumes familiarity with the background of this case brought against the owners, developers, and architects of a residential apartment building known as “The Amberly” located in Kings County, New York. This action concerns The Amberly’s accessibility for people with disabilities who use wheelchairs and is filed pursuant to the Fair Housing Act (“FHA”) and related federal and state civil rights laws. (See Mem. & Order dated September 6, 2023 (“M&O”) (Dkt. 116) at 1-3; see also R&R at 3-4.) II. LEGAL STANDARD A district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made” by a magistrate judge in an R&R. 28 U.S.C. §636(b)(1)(C). Where a party timely and specifically objects, the court conducts a de novo review of the contested portions of the R&R. Fischer v. Forrest, 286 F. Supp. 3d 590, 601 (S.D.N.Y. 2018). “However, when a party makes only conclusory or general objections, or simply reiterates his original arguments, the court reviews the report and recommendation strictly for clear error.” Piligian v. Icahn Sch. of Med. at Mount Sinai, 490 F. Supp. 3d 707, 715 (S.D.N.Y. 2020).1 III. DISCUSSION Plaintiff raises three objections to the R&R. (See generally Objections to R&R.) The court addresses each objection below. Plaintiff first objects on the basis that the Magistrate Judge has committed “fundamental error” in applying New York’s contribution statute, C.P.L.R. §1401 by “analyzing the viability of Woods Bagot’s contribution claim” outside of the “FHA context.” (Objections to R&R at 3-4.) This objection is without merit. While it is true that Judge Cho did not cite to cases concerning FHA violations, this court did so in its initial Memorandum & Order, which already established that “claims for partial indemnification or contribution that are proportionate to fault are allowed under the FHA.” (M&O at 6-8, 20.) This court further concluded that the Indemnification Clause found in the Architectural Services Agreement between 203 Jay St. Associates, LLC and Woods Bagot, “does not pose an obstacle to the intended purpose and effect of the FHA” given that it required Woods Bagot to indemnify Owner Defendants for losses in connection with the performance of services furnished by Woods Bagot, and that such losses would be reduced proportionally to reflect the contribution of any act or omission by Woods Bagot. (Id. at 7-8.) These findings set the context and contours of the motion to amend as well as Judge Cho’s R&R. Nevertheless, Woods Bagot argues that in failing to consider cases based on alleged violations of the FHA, Judge Cho did not undergo a sufficient analysis of Woods Bagot’s contribution and partial common law indemnification claims. (Objections to R&R at 3, 7.) While the court would conclude this is a general objection that needs no further analysis, a de novo review of Woods Bagot’s proposed Amended Third-Party Complaint based on its other objections discussed infra, requires the same result as recommended by Judge Cho. Woods Bagot also objects to Judge Cho’s recommendation denying Woods Bagot’s motion to add a contribution claim, arguing that he did so relying on the undersigned’s prior rulings based on Wood Bagot’s original Third-Party Complaint rather than its proposed Amended Third-Party Complaint. (Id. at 5.) This argument is disingenuous and inaccurate. Specifically, Judge Cho explains: As Judge Garaufis recognized, New York’s contribution statute does not cover “purely economic loss resulting from a breach of contract,” but requires “some form of tort liability.” 9/6/23 M&O at 20-21. Finding that Woods Bagot’s contribution claim was “grounded in contract rather than tort,” Judge Garaufis dismissed the claim. Id. at 21-22 (“Woods Bagot has failed to allege any form of tort liability against JFG.”). Judge Garaufis held that “[a] plaintiff cannot circumvent [the tort requirement] by asserting a negligence claim grounded in a duty created by contract.” Id. at 21. Those rulings are the law of the case. See Arizona v. California, 460 U.S. 605, 618 (1983) (“[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.”). (R&R at 7.) In the very next paragraph, Judge Cho reviews the proposed Amended Third-Party Complaint to find that Woods Bagot has not corrected the deficiencies identified by this court, but rather “adds a few conclusory allegations that continue to assert that JFG owed a duty of care to Woods Bagot arising out of the purported contract between Woods Bagot and JFG, and that JFG breached that duty.” (Id.) (emphasis in original). Judge Cho further explains that Woods Bagot’s motion to amend focuses largely on how the undersigned erred in concluding that Woods Bagot failed to allege a basis for tort liability against JFG as required to raise a contribution claim. (Id.) The R&R adds that a motion to amend is not the appropriate vehicle to argue for reconsideration of the undersigned’s ruling on issues of law. (Id. at 8.) It is inaccurate to suggest that Judge Cho erred in reiterating this court’s prior rulings when Woods Bagot improperly sought to relitigate those issues. (See Mem. in Support of Mot. to Amend (Dkt. 118-7) at 4-6 (arguing that while the court observed that New York’s contribution statute requires some form of tort liability, “liability under the Fair Housing Act sounds in tort”).) In any event, a de novo review of case law and the proposed Amended Third-Party Complaint make clear that (1) this court’s previous ruling that Woods Bagot cannot circumvent the tort requirement by asserting a negligence claim grounded in contract still stands; (2) such ruling stands in light of cases in the FHA context; and (3) the proposed Amended Third-Party Complaint fails to allege the requisite tort separate from a contractual benefit. Starting with the court’s ruling that contribution under CPLR §1401 requires some form of tort liability to invoke the statute, Woods Bagot assumes that because liability under the FHA sounds in tort, its contribution claim must be permitted on that basis. (Id. at 4-6.) Not so. In Clover Communities Beavercreek, LLC v. Mussachio Architects P.C., 676 F. Supp. 3d 82, 92-93 (N.D.N.Y. 2023), a case cited by Woods Bagot in its Objections to the R&R, the Northern District of New York found that plaintiffs’ contribution claims under CPRL §1401 were not preempted because the parties liable under the FHA were not attempting to “completely insulate themselves from liability.”2 The court then considered plaintiffs’ other claims and adopted the reasoning of out-of-circuit courts to determine that when considering whether claims such as breach of contract and professional malpractice are preempted by the FHA [the court must] consider whether the claims seek to vindicate an obligation owed independently of the FHA or whether the claims are merely reiterations of an indemnification or contribution claim seeking to vindicate FHA violations. Id. at 93. The Clover court did not conclude that because liability under the FHA sounds in tort, the contribution, breach of contract, and professional malpractice claims are all permissible. Instead, the court reiterated New York law, concluding that state law claims must be grounded in obligations independent of the FHA. And in that case, the court found that plaintiffs’ breach of contract claim was sufficiently distinct from an indemnification claim for FHA violations because plaintiffs alleged that the defendant Mussachio Architects breached its contracts by “failing to provide designs on each of the Projects that are compliant with the FHA” and that Mussachio Architects “breached its contractual duty to inform the owner of each project of any deviations, defects or deficiencies.” Id. at 93-94. The Clover court’s analysis is instructive. There, the court concluded that because there were allegations with respect to obligations owed under the FHA as well as separate and distinct allegations specific to the contracts, the breach of contract claim was permissible. See also Kaufman v. P&G Brokerage Inc., 209 N.Y.S.3d 270, 287 (Sup. Ct. Kings Cnty. 2024) (“[T]he Court of Appeals has held that contribution does not lie in contract cases but that a case that sounds in both breach of contract and tort does not of itself bar contribution.”) (emphasis added). Thus, while it is true that FHA violations sound in tort, a contribution claim under New York law must still allege a tort separate and distinct from the FHA to invoke the statute. Turning to Woods Bagot’s proposed Amended Third-Party Complaint, the court concludes that the additional allegations do not establish the requisite independent tort claim to add its requested contribution claim. Specifically, Woods Bagot adds, inter alia, the following allegations: On or about November 12, 2013, [Woods Bagot] entered into a consulting agreement with JFG to provide professional architectural services in connection with the design of the building that is the subject of Plaintiff’s Amended Complaint (the “Project”). On or about September 11, 2014, [Woods Bagot] and JFG entered into an agreement pursuant to an email proposal from JFG to provide Construction Administration services including, but not limited to: reviewing and coordinating shop drawings; responding to Requests for Information; issuing sketches; and issuing revised contract drawings. Pursuant to its contracts with [Woods Bagot], JFG owed [Woods Bagot] a duty to exercise due care in the performance of its professional services. To the extent JFG’s designs violated applicable accessibility laws, JFG breached a duty of care owed to [Woods Bagot] and to Plaintiff. (See Ex. B to Mark Seiden Decl. (“Proposed Amended Third-Party Complaint”) (Dkt. 118-3)
9-10, 14-15.) The allegations provided, as argued by Woods Bagot, are purporting to establish that should Woods Bagot be found in violation of the FHA or other accessibility laws for its designed features in The Amberly, then JFG must also be in violation for its participation in creating those designs. (See Objections to R&R at 5.) However, these allegations all stem from contracts and email proposals between Woods Bagot and JFG; indeed, they are appended to Woods Bagot’s papers for the instant motion. (See Exs. A & B to Matthew Stephenson Aff. (Dkt. 118-4).) While there are allegations elsewhere in the proposed Amended Third-Party Complaint that suggest Woods Bagot is asserting negligence on the part of JFG for its part in rendering design services, there are simply no allegations pointing to how this negligence is in violation of the FHA as opposed to JFG’s contractual obligations. See Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 390 (1987) (“Merely charging a breach of a ‘duty of due care’, employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim.”). Accordingly, Wood Bagot’s objections with respect to the contribution claim are overruled. Finally, Woods Bagot objects to the Magistrate Judge’s analysis of common law indemnification, arguing that the R&R “applies a different standard…than this Court applied in the Memorandum & Order granting JFG’s motion to dismiss the original Third-Party Complaint.” (Objections to R&R at 7.) Specifically, Woods Bagot argues that the R&R suggests that implied indemnification is only proper in the case of special relationships and that the undersigned did not reference this “purported limitation” on common law indemnity claims. (Id. at 9.) Whether this court referenced the word “special” in describing the elements of common law indemnification in its Order is of no import when that is a requirement under New York State and Second Circuit law and is explicitly mentioned in the cases the undersigned relied upon when discussing indemnification. (See M&O at 22 (citing Mathis v. United Homes, LLC, 607 F. Supp. 2d 411, 433-34 (E.D.N.Y. 2009) (“Nevertheless, implied indemnification is only available if an agreement to indemnify can be implied between the parties…due to some special relationship that exists between them or some obligation imposed by law.”); City of New York v. Black & Veatch, No. 95-CV-1299 (LAP), 1997 WL 624985, at *11 (S.D.N.Y. Oct. 6, 1997) (noting that a “party must show facts demonstrating that there is something ‘special’ about the contractual relationship that would warrant implying in fact a contract for indemnification”).) See also Peoples’ Democratic Republic of Yemen v. Goodpasture, Inc., 782 F.2d 346, 351 (2d Cir. 1986) (“[A]n implied right to indemnification may be based on the special nature of a contractual relationship between parties.”). As such, the court deems this objection conclusory and reviews the relevant portion of the R&R for clear error. Finding none, the court ADOPTS the recommendation denying Woods Bagot’s motion to add a partial indemnification claim. IV. CONCLUSION Finding no merit to any of Third-Party Plaintiff’s objections, the court ADOPTS IN FULL the Magistrate Judge’s R&R. SO ORDERED. Fair Housing Justice Center, Inc., Plaintiff v. 203 Jay St. Associates, LLC, Amtrust Realty Corp., and Woods Bagot Architects, P.C., Defendants; 21-CV-1192 Woods Bagot Architects, P.C., Third-Party Plaintiff v. Steven Kirk Mason d/b/a Realms Architectural and JFG Architects, Third-Party Defendants Amtrust Realty Corp. and 203 Jay St. Associates, LLC, Third-Party Plaintiffs v. Bravo Builders, LLC, Third-Party Defendant On March 5, 2021, plaintiff Fair Housing Justice Center, Inc. (“plaintiff” or “FHJC”) commenced this civil rights action against defendants 203 Jay St. Associates, LLC, Amtrust Realty Corp. (the “Owner defendants”), and Woods Bagot Architects, P.C. (“Woods Bagot”) (collectively, “defendants”) concerning the accessibility of a residential apartment building. See generally Compl., Dkt. 1; Am. Compl. Dkt. 15. The Owner defendants, in turn, asserted cross-claims against Woods Bagot. See Dkts. 37, 38. Woods Bagot brought cross-claims against the Owner defendants, and third-party claims against JFG Architects (“JFG”) and Steven Kirk Mason, d/b/a Realms Architectural (“Realms Architectural”) for contribution, indemnification, breach of contract and negligence. See Dkt. 33. By Memorandum and Order dated September 6, 2023, the Honorable Nicholas G. Garaufis granted third-party defendant JFG’s motion to dismiss Woods Bagot’s third-party claims. See Memorandum and Order (“9/6/23 M&O”), Dkt. 116. However, the District Court granted Woods Bagot an opportunity to request leave to amend its Third-Party Complaint. On October 6, 2023, Woods Bagot moved for leave to amend its Third-Party Complaint to assert claims against JFG for contribution, and for partial common law indemnification. See Motion for Leave to Amend, Dkt. 118. JFG opposes the motion on the grounds that the proposed amendments are futile. See JFG’s Opposition to Woods Bagot’s motion for leave to amend its third-party complaint, Dkt. 121. On January 9, 2024, Judge Garaufis referred Woods Bagot’s motion to this Court. See Order Referring Motion dated Jan. 9, 2024. For the following reasons, the Court respectfully recommends denying Woods Bagot’s motion to amend.3 Background Plaintiff commenced this action against defendants alleging disability discrimination in connection with the design and construction of a residential apartment building located at 120 Nassau Street in Brooklyn, New York, known as The Amberly. See Am. Compl.
