    17-657-cv
    Stapleton v. Barrett Crane Design & Eng’g


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit, held
    at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
    on the 20th day of February, two thousand eighteen.

    PRESENT:
                RALPH K. WINTER,
                DEBRA ANN LIVINGSTON,
                DENNY CHIN,
                      Circuit Judges.
    _____________________________________

    KELLY BEAUDIN STAPLETON, solely in her capacity
    as Trustee of the SGK Ventures, LLC Liquidating
    Trust,

                                Plaintiff-Appellant,

                       v.                                                      17-657-cv

    BARRETT CRANE DESIGN & ENGINEERING, a
    proprietorship, PAVILION BUILDING INSTALLATIONS
    SYSTEMS LTD., a Canadian corporation, ZEHN
    BURHAM UZMAN, an individual, DOUGLAS BARRETT,
    an individual,

                                Defendants-Counter-Claimants-Cross-
                                Defendants-Appellees,

    LI ZHI CAO, an individual,

                      Defendant-Cross-Defendant-Appellee.
    ____________________________________

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 For Plaintiff-Appellant:                                   CHARLES KELLY (Sharon Angelino, Goldberg
                                                            Segalla LLP, Buffalo, NY, on the brief), Saul
                                                            Ewing LLP, Pittsburgh, PA.

 For Barrett Crane Design & Engineering and                 BRIAN SUTTER (Jenna W. Klucsik, on the
 Douglas Barrett:                                           brief), Sugarman Law Firm, LLP, Syracuse,
                                                            NY.

 For Zehn Burham Uzman:                                     PETER A. LAURICELLA, Wilson, Elser,
                                                            Moskowitz, Edelman & Dicker LLP, Albany,
                                                            NY.


        Appeal from a judgment of the United States District Court for the Western District of New

York (Skretny, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Kelly Beaudin Stapleton, solely in her capacity as Trustee of the SGK

Ventures, LLC Liquidating Trust (hereinafter “Keywell”),* appeals from the district court’s

February 1, 2017 order granting summary judgment to Defendants-Counter-Claimants-Cross-

Defendants-Appellees Zehn Burhan Uzman (“Uzman”) and Douglas Barrett and Barrett Crane

Design & Engineering (collectively, “Barrett”). Keywell entered into a Master Agreement with

a general contractor, Pavilion Building Installation Systems, Ltd. (“Pavilion”) in order to build a

certain structure for Keywell’s business operations (the “Structure”). After the Structure was

built, Keywell brought breach of contract and professional negligence claims against Pavilion and

Li Zhi Cao (a Pavilion employee) alleging that the design of the Structure did not fulfill the

requirements of the Master Agreement. Keywell also brought these same claims against Uzman

and Barrett, alleging that they were liable for professional negligence and for breach of contract



* Keywell LLC was the original plaintiff in this action. After Keywell filed for bankruptcy and was liquidated,
Stapleton was substituted as plaintiff.
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pursuant to the Master Agreement. Default judgments were entered against Pavilion and Cao

earlier in the litigation. This appeal focuses solely on the district court’s grant of summary

judgment in favor of Uzman and Barrett.

        We review the district court’s grant of summary judgment de novo, construing all evidence

and drawing all inferences in the light most favorable to the non-moving party at the summary

judgment stage. Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011). We “may affirm

on any basis that finds support in the record.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015)

(citation omitted). Summary judgment is appropriate if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

But even though we view the evidence in favor of the non-moving party, “the mere existence of a

scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the plaintiff.” Jeffreys v. City of New York,

426 F.3d 549, 554 (2d Cir. 2005) (internal alterations and quotation marks omitted). We cannot

merely “rely on conclusory allegations or unsubstantiated speculation” to defeat a motion for

summary judgment. Id. at 554 (internal quotation marks omitted). We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

   I.      Privity or the Functional Equivalent of Privity

        We agree with the district court that no jury could reasonably find that Keywell was in a

relationship of privity or its functional equivalent with Uzman and Barrett based on the Master

Agreement, in the factual circumstances of this case. The district court thus correctly granted

summary judgment in favor of Uzman and Barrett insofar as Keywell’s breach of contract and

professional negligence claims were based on duties allegedly derived from this Agreement. In

New York, “[l]iability for breach of contract does not lie absent proof of a contractual relationship

or privity between the parties.” Hamlet at Willow Creek Dev. Co. v. Ne. Land Dev. Corp., 878
                                                 3
N.Y.S.2d 97, 111 (2d Dep’t 2009). However, “[e]ven if the plaintiff is not a party to [an]

underlying construction contract, the [breach of contract] claim may accrue upon completion of

the construction 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.’” Town of Oyster Bay v.

Lizza Indus., Inc., 4 N.E.3d 944, 948 (N.Y. 2013) (quoting City Sch. Dist. of City of Newburgh v.

Hugh Stubbins & Assocs., Inc., 650 N.E.2d 399, 401 (N.Y. 1995)). New York similarly limits

professional negligence claims to situations where the relationship between the plaintiff and the

defendant is either “one of privity of contract, or . . . the bond between them [is] so close as to be

the functional equivalent of privity.” Perfetto v. CEA Engineers, P.C., 980 N.Y.S.2d 788, 789

(2d Dep’t 2014) (“Like a cause of action alleging negligent misrepresentation, a viable cause of

action alleging professional negligence or malpractice requires that the underlying relationship

between the parties be one of privity of contract, or that the bond between them be so close as to

be the functional equivalent of privity.” (citing Ossining Union Free Sch. Dist. v. Anderson

LaRocca Anderson, 539 N.E.2d 91, 95 (N.Y. 1989))). Courts apply a three-part test to determine

whether the functional equivalent of privity exists: “(1) awareness that the [work product was] 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, 539 N.E.2d at 95 (discussing the

functional equivalent of privity test in the context of a negligence claim); see also Bri-Den Const.

Co. v. Kapell & Kostow Architects, P.C., 867 N.Y.S.2d 437, 438 (1st Dep’t 2008) (discussing

“‘functional equivalent of contractual privity’ under the three prong test in Ossining” in the context

of a breach of contract claim); Newburgh, 650 N.E.2d at 401 (same).




                                                  4
       The Master Agreement did not establish a privity relationship between Keywell and Uzman

or Barrett. Only Keywell and Pavilion signed the Master Agreement. There is no evidence that

Uzman and Barrett were even aware of the Master Agreement, much less intended to be bound by

it. Kowalchuk v. Stroup, 873 N.Y.S.2d 43, 46 (1st Dep’t 2009) (“To establish the existence of an

enforceable agreement, a plaintiff must establish an offer, acceptance of the offer, consideration,

mutual assent, and an intent to be bound . . . . That meeting of the minds must include agreement

on all essential terms . . . .” (citations omitted)). Keywell also failed to raise a material issue of

fact as to whether the functional equivalent of privity existed here. To satisfy the third prong of

New York’s functional equivalent of privity test, “there must be some allegation of ‘linking

conduct’ by the [professional], that is, ‘any word or action on the part of the [professional] directed

to plaintiffs,’ so as to ‘link’ the [professional] to the non-client.” See Houbigant, Inc. v. Deloitte

& Touche LLP, 753 N.Y.S.2d 493, 495 (1st Dep’t 2003) (citation omitted); see also RLI Ins. Co.

v. King Sha Grp., 598 F. Supp. 2d 438, 443 (S.D.N.Y. 2009) (“When an owner and subcontractor

engage in direct dealings . . . the ‘functional equivalent of privity’ may be established despite the

lack of a formal contract.” (citing Newburgh, 650 N.E.2d at 401)). Here, Keywell admits that

Uzman and Barrett had no direct contact with Keywell at all. Keywell argues, however, that

“linking conduct” was established because Uzman’s name was stamped on drawings of the

Structure. But there is no evidence that Uzman conveyed these drawings to Keywell, or otherwise

had any direct contact or communication with Keywell concerning them. It is undisputed,

moreover, that the design of the Structure ultimately built was different from the design depicted

in the drawings stamped by Uzman. In light of the undisputed facts in this record, the evidence

is not sufficient in the circumstances here to raise a “genuine dispute” as to whether a relationship

of privity or its equivalent existed between Uzman and Keywell. Fed. R. Civ. P. 56(a); see


                                                  5
Jeffreys, 426 F.3d at 554 (“[T]he mere existence of a scintilla of evidence in support of the

plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably

find for the plaintiff.” (internal alterations and quotation marks omitted)).

   II.      Third-Party Beneficiary Rights

         A plaintiff who is not in privity with a defendant may also bring a breach of contract claim

by “asserting third-party beneficiary rights under a contract.” Logan-Baldwin v. L.S.M. Gen.

Contractors, Inc., 942 N.Y.S.2d 718 (4th Dep’t 2012) (citation and internal quotation marks

omitted). Keywell now argues that it was a third-party beneficiary of the oral contracts that

Uzman and Barrett entered into with Pavilion. But Keywell raised this argument too late.

Keywell’s complaint focused exclusively on alleged breaches of the Master Agreement and its

amendments. Keywell first raised the third-party beneficiary theory of liability in its opposition

to summary judgment. As a result, the district court did not abuse its discretion in refusing to

consider the merits of Keywell’s third-party beneficiary theory of liability. See, e.g., Greenidge

v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006) (affirming district court’s decision not to

reach the merits of an argument “raised . . . for the first time in [plaintiffs’] papers opposing the []

motion for summary judgment” when plaintiffs failed to move to amend or move for

reconsideration); see also Lyman v. CSX Transp., Inc., 364 F. App’x 699, 701–02 (2d Cir. 2010)

(summary order).

                                           *       *       *

         We have considered Keywell’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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