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

                          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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 29th day of October, two thousand thirteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                DENNIS JACOBS,
 8                CHESTER J. STRAUB,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       RIDGE SENECA PLAZA, LLC,
13                Plaintiff-Appellant,
14
15                    -v.-                                               12-4754
16
17       BP PRODUCTS NORTH AMERICA INC., FISHER
18       ASSOCIATES, P.E., L.S.. P.C.,
19                Defendants, Cross Claimants,
20                Cross Defendants, Appellees,
21
22       EAST RIDGE ENTERPRISES, INC., MALCOM
23       I. GLAZER, FIRST ALLIED SHOPPING
24       CENTER, L.P.
25                Defendants, Cross Claimants,
26                Cross Defendants
27       - - - - - - - - - - - - - - - - - - - -X
28

                                                  1
 1   FOR APPELLANT:                ALAN J. KNAUF (Amy K. Kendall, on
 2                                 the brief), Knauf Shaw LLP,
 3                                 Rochester, New York.
 4
 5   FOR APPELLEES:                GARY S. BOWITCH, Bowitch & Coffey,
 6                                 LLC, Albany, New York, and
 7                                 Joseph D. Lonardo, Vorys, Sater,
 8                                 Seymour and Pease LLP,
 9                                 Washington, D.C., for BP
10                                 Products North America Inc.
11
12                                 JAMES G. STEVENS, JR., Sugarman Law
13                                 Firm, LLP, Syracuse, New York.
14
15        Appeal from a judgment of the United States District
16   Court for the Western District of New York (Siragusa, J.).
17
18        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19   AND DECREED that the judgment of the district court be
20   AFFIRMED.
21
22       Ridge Seneca appeals from a judgment of the United

23   States District Court for the Western District of New York

24   (Siragusa, J.), dismissing its complaint on summary

25   judgment.   Ridge Seneca alleges that BP’s operation of a

26   nearby gas station contaminated its shopping plaza, and that

27   Fisher Associates failed to detect the contamination or warn

28   of its potential existence.    The district court ruled that

29   Ridge Seneca raised no genuine issue of material fact

30   concerning BP’s responsibility for the contamination.      The

31   court granted summary judgment on Ridge Seneca’s

32   professional malpractice claim against Fisher because there

33   was no privity of contract with Ridge Seneca for the initial

34   environmental assessment, and because Ridge Seneca’s Amended


                                     2
1    Complaint was untimely.     We assume the parties’ familiarity

2    with the underlying facts, the procedural history, and the

3    issues presented for review.

4        We review an order granting summary judgment de novo,

5    drawing all factual inferences in favor of the non-moving

6    party.   Costello v. City of Burlington, 632 F.3d 41, 45 (2d

7    Cir. 2011).     Summary judgment is appropriate when “there is

8    no genuine dispute as to any material fact and the movant is

9    entitled to judgment as a matter of law.”     Fed. R. Civ. P.

10   56(a).

11       1.    Alleged Contamination by BP Products

12       Ridge Seneca contends a genuine issue of material fact

13   existed showing BP’s partial responsibility for the

14   contamination caused by the gas station.     “A fact is

15   ‘material’ only if the fact has some affect on the outcome

16   of the suit.”     Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir.

17   1998).   A dispute regarding a material fact is genuine “if

18   the evidence is such that a reasonable jury could return a

19   verdict for the nonmoving party.”     Anderson v. Liberty

20   Lobby, Inc., 477 U.S. 242 (1986).     Upon our review, we

21   conclude that Ridge Seneca’s appeal is without merit for the

22   reasons articulated by the district court in its decision

23   and order.    See Ridge Seneca Plaza, LLC, v. BP Products



                                     3
1    North America, East Ridge Enterprises, Inc., No. 06-CV-6333

2    (W.D.N.Y. July 26, 2012, ECF No. 197).

3        2.   Privity of Contract

4        “[B]efore a party may recover in tort for pecuniary

5    loss sustained as a result of another’s negligent

6    misrepresentations there must be a showing that there was

7    either actual privity of contract between the parties or a

8    relationship so close as to approach that of privity.”

9    Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby,

10   Palmer & Wood, 80 N.Y.2d 377, 382 (1992).    When the initial

11   Phase I assessment was conducted in 2000, no actual privity

12   existed between Fisher Associates and Ridge Seneca.    Ridge

13   Seneca, therefore, must show a relationship close enough to

14   privity, which requires: “(1) an awareness by the maker of

15   the statement that it is to be used for a particular

16   purpose; (2) reliance by a known party on the statement in

17   furtherance of that purpose; and (3) some conduct by the

18   maker of the statement linking it to the relying party and

19   evincing its understanding of that reliance.”    Id. at 384

20   (citing Credit Alliance Corp. v. Arthur Andersen & Co., 65

21   N.Y.2d 536, 551 (1985)).

22       Ridge Seneca was not a “known party” to Fisher during

23   the 2000 Phase I study.    New York courts interpret this

24   phrase narrowly, rejecting the possibility that any

                                    4
1    foreseeable plaintiff may recover.       See Ossining Union Free

2    School Dist. v. Anderson LaRocca Anderson, 73 N.Y.2d 417,

3    424-25 (1989).     “The words ‘known party or parties’ in the

4    Credit Alliance test mean what they say. . . . [The

5    defendant must] know the ‘identity of the specific nonprivy

6    party who would be relying.’”       Sykes v. RFD Third Ave. 1

7    Assoc., LLC, 15 N.Y.3d 370, 373-74 (2010) (emphasis added).

8    Ridge Seneca first came into existence in February 2001,

9    months after completion of the initial Phase I study.

10   Fisher knew only that its report was for Sylvan Enterprises

11   and its lawyers.     Fisher never knew of Ridge Seneca’s

12   pending formation.     Because Ridge Seneca was not a “known

13   party,” its claims against Fisher for the 2000 study

14   necessarily fail.

15       3.   Timeliness of the Amended Complaint

16       Ridge Seneca’s Amended Complaint alleged claims against

17   Fisher for events in 2003 and 2004.       Ridge Seneca argues

18   that it was timely by virtue of either New York’s discovery

19   rule, N.Y. C.P.L.R. 214-c(2), or the continuous treatment

20   exception, Williamson v. Pricewaterhouse Coopers LLP, 9

21   N.Y.3d 1, 8-9 (2007).     The success of either argument,

22   however, ultimately rests on whether the amended pleading

23   relates back to the original pleading pursuant to Fed. R.

24   Civ. P. 15(c)(1)(B).     For a newly-added action to relate

                                     5
1    back, the “basic claim must have arisen out of the conduct

2    set forth in the original pleading.”     Slayton v. Am. Express

3    Co., 460 F.3d 215, 228 (2d Cir. 2006) (quoting Tho Dinh Tran

4    v. Alphonse Hotel Corp., 281 F.3d 23, 36 (2d Cir. 2002)).

5    “[E]ven where an amended complaint tracks the legal theory

6    of the first complaint, claims that are based on an

7    ‘entirely distinct set’ of factual allegations will not

8    relate back.”     Id. (quoting Nettis v. Levitt, 241 F.3d 186,

9    193 (2d Cir. 2001)).

10       Ridge Seneca’s original complaint contained no factual

11   allegations regarding these later transactions with Fisher.

12   No mention was made of the 2003 update or the 2004 phone

13   call–-events more than two years after the initial Phase I

14   study.     These later events were separate transactions,

15   despite their connection to the first assessment.     Cf.

16   Pruiss v. Bosse, 912 F.Supp. 104, 106 (S.D.N.Y. 1996)

17   (amendments did not relate back in defamation suit despite

18   the statement’s content being the same over time); Jensen v.

19   Times Mirror Co., 634 F.Supp. 304, 315-16 (D. Conn. 1986)

20   (applying the “single publication” rule in defamation

21   action).     The claims in the Amended Complaint did not arise

22   out of the conduct alleged in the original complaint.       We

23   agree with the district court that the Amended Complaint was

24   untimely.

                                     6
1       For the foregoing reasons, and finding no merit in

2   Ridge Seneca’s other arguments, we hereby AFFIRM the

3   judgment of the district court.

4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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