12-4754 Ridge Seneca Plaza, LLC v. BP Products 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“ SUMMARY ORDER**  **”). A**  **PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 29 th** **day of October, two thousand thirteen.** 4 5 **PRESENT: RALPH K. WINTER,** 6 **DENNIS JACOBS,** 7 **CHESTER J. STRAUB,** 8 **Circuit Judges .**  9 10 - - - - - - - - - - - - - - - - - - - -X 11 **RIDGE SENECA PLAZA, LLC,** 12 **Plaintiff-Appellant ,**  13 14 **-v.- 12-4754** 15 16 **BP PRODUCTS NORTH AMERICA INC., FISHER** 17 **ASSOCIATES, P.E., L.S.. P.C.,** 18 **Defendants, Cross Claimants,** 19 **Cross Defendants, Appellees ,**  20 21 **EAST RIDGE ENTERPRISES, INC., MALCOM** 22 **I. GLAZER, FIRST ALLIED SHOPPING** 23 **CENTER, L.P.** 24 **Defendants, Cross Claimants,** 25 **Cross Defendants** 26 - - - - - - - - - - - - - - - - - - - -X 27 28

1**FOR APPELLANT:** ALAN J. KNAUF (Amy K. Kendall, on 1 the brief ), Knauf Shaw LLP, 2 Rochester, New York. 3 4 **FOR APPELLEES:** GARY S. B OWITCH , Bowitch & Coffey, 5 LLC, Albany, New York, and 6 Joseph D. Lonardo, Vorys, Sater, 7 Seymour and Pease LLP, 8 Washington, D.C., forBP 9 Products North America Inc. 10 11 JAMES G. S TEVENS , J R ., Sugarman Law 12 Firm, LLP, Syracuse, New York. 13 14 Appeal from a judgment of the United States District 15 Court for the Western District of New York (Siragusa, J. ). 16 17 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 18 **AND DECREED**that the judgment of the district court be 19 **AFFIRMED**

. 20 21 Ridge Seneca appeals from a judgment of the United 22 States District Court for the Western District of New York 23 (Siragusa, J. ), dismissing its complaint on summary 24 judgment. Ridge Seneca alleges that BP’s operation of a 25 nearby gas station contaminated its shopping plaza, and that 26 Fisher Associates failed to detect the contamination or warn 27 of its potential existence. The district court ruled that 28 Ridge Seneca raised no genuine issue of material fact 29 concerning BP’s responsibility for the contamination. The 30 court granted summary judgment on Ridge Seneca’s 31 professional malpractice claim against Fisher because there 32 was no privity of contract with Ridge Seneca for the initial 33 environmental assessment, and because Ridge Seneca’s Amended 34

2Complaint was untimely. We assume the parties’ familiarity 1 with the underlying facts, the procedural history, and the 2 issues presented for review. 3 We review an order granting summary judgment de novo , 4 drawing all factual inferences in favor of the non-moving 5 party. Costello v. City of Burlington , 632 F.3d 41, 45 (2d 6 Cir. 2011). Summary judgment is appropriate when “there is 7 no genuine dispute as to any material fact and the movant is 8 entitled to judgment as a matter of law.” Fed. R. Civ. P. 9 56(a). 10 1. Alleged Contamination by BP Products 11 Ridge Seneca contends a genuine issue of material fact 12 existed showing BP’s partial responsibility for the 13 contamination caused by the gas station. “A fact is 14 ‘material’ only if the fact has some affect on the outcome 15 of the suit.” Catanzaro v. Weiden , 140 F.3d 91, 93 (2d Cir. 16 1998). A dispute regarding a material fact is genuine “if 17 the evidence is such that a reasonable jury could return a 18 verdict for the nonmoving party.” Anderson v. Liberty 19 Lobby, Inc. , 477 U.S. 242 (1986). Upon our review, we 20 conclude that Ridge Seneca’s appeal is without merit for the 21 reasons articulated by the district court in its decision 22 and order. SeeRidge Seneca Plaza, LLC, v. BP Products 23

3North America, East Ridge Enterprises, Inc. , No. 06-CV-6333 1 (W.D.N.Y. July 26, 2012, ECF No. 197). 2 2. Privity of Contract 3 “[B]efore a party may recover in tort for pecuniary 4 loss sustained as a result of another’s negligent 5 misrepresentations there must be a showing that there was 6 either actual privity of contract between the parties or a 7 relationship so close as to approach that of privity.” 8 Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby, 9 Palmer & Wood , 80 N.Y.2d 377, 382 (1992). When the initial 10 Phase I assessment was conducted in 2000, no actual privity 11 existed between Fisher Associates and Ridge Seneca. Ridge 12 Seneca, therefore, must show a relationship close enough to 13 privity, which requires: “(1) an awareness by the maker of 14 the statement that it is to be used for a particular 15 purpose; (2) reliance by a known party on the statement in 16 furtherance of that purpose; and (3) some conduct by the 17 maker of the statement linking it to the relying party and 18 evincing its understanding of that reliance.” Id. at 384 19 (citing Credit Alliance Corp. v. Arthur Andersen & Co. , 65 20 N.Y.2d 536, 551 (1985)). 21 Ridge Seneca was not a “known party” to Fisher during 22 the 2000 Phase I study. New York courts interpret this 23 phrase narrowly, rejecting the possibility that any 24

4foreseeable plaintiff may recover. SeeOssining Union Free 1 School Dist. v. Anderson LaRocca Anderson , 73 N.Y.2d 417, 2 424-25 (1989). “The words ‘known party or parties’ in the 3 Credit Alliancetest mean what they say. . . . [The 4 defendant must] know the ‘identity of the specificnonprivy 5 party who would be relying.’” Sykes v. RFD Third Ave. 1 6 Assoc., LLC , 15 N.Y.3d 370, 373-74 (2010) (emphasis added). 7 Ridge Seneca first came into existence in February 2001, 8 months after completion of the initial Phase I study. 9 Fisher knew only that its report was for Sylvan Enterprises 10 and its lawyers. Fisher never knew of Ridge Seneca’s 11 pending formation. Because Ridge Seneca was not a “known 12 party,” its claims against Fisher for the 2000 study 13 necessarily fail. 14 3. Timeliness of the Amended Complaint 15 Ridge Seneca’s Amended Complaint alleged claims against 16 Fisher for events in 2003 and 2004. Ridge Seneca argues 17 that it was timely by virtue of either New York’s discovery 18 rule, N.Y. C.P.L.R. 214-c(2), or the continuous treatment 19 exception, Williamson v. Pricewaterhouse Coopers LLP , 9 20 N.Y.3d 1, 8-9 (2007). The success of either argument, 21 however, ultimately rests on whether the amended pleading 22 relates back to the original pleading pursuant to Fed. R. 23 Civ. P. 15(c)(1)(B). For a newly-added action to relate 24

5back, the “basic claim must have arisen out of the conduct 1 set forth in the original pleading.” Slayton v. Am. Express 2

Co. , 460 F.3d 215, 228 (2d Cir. 2006) (quoting Tho Dinh Tran 3 v. Alphonse Hotel Corp. , 281 F.3d 23, 36 (2d Cir. 2002)). 4 “[E]ven where an amended complaint tracks the legal theory 5 of the first complaint, claims that are based on an 6 ‘entirely distinct set’ of factual allegations will not 7 relate back.” Id. (quoting Nettis v. Levitt , 241 F.3d 186, 8 193 (2d Cir. 2001)). 9 Ridge Seneca’s original complaint contained no factual 10 allegations regarding these later transactions with Fisher. 11 No mention was made of the 2003 update or the 2004 phone 12 call–-events more than two years after the initial Phase I 13 study. These later events were separate transactions, 14 despite their connection to the first assessment. Cf. 15 Pruiss v. Bosse , 912 F.Supp. 104, 106 (S.D.N.Y. 1996) 16 (amendments did not relate back in defamation suit despite 17 the statement’s content being the same over time); Jensen v. 18 Times Mirror Co. , 634 F.Supp. 304, 315-16 (D. Conn. 1986) 19 (applying the “single publication” rule in defamation 20 action). The claims in the Amended Complaint did not arise 21 out of the conduct alleged in the original complaint. We 22 agree with the district court that the Amended Complaint was 23 untimely. 24

6For the foregoing reasons, and finding no merit in 1 Ridge Seneca’s other arguments, we hereby **AFFIRM** the 2 judgment of the district court. 3
4 FOR THE COURT: 5 CATHERINE O’HAGAN WOLFE, CLERK 6 7

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