Subcontractor Defendant Permitted to Amend its Answer to Plead Lack of Privity

Logan-Baldwin v. L.S.M. Gen. Contractors, Inc., 914 N.Y.S.2d 617 (N.Y. Sup. Ct. 2011)

In this case, the homeowner plaintiffs sued the contractor, subcontractors, and their principals alleging breach of contract and fraudulent inducement, arising out of a renovation project in their historic Rochester home.  A subcontractor moved for summary judgment, alleging lack of privity with the plaintiffs, who defended on the ground that the subcontractor failed to plead lack of privity in its answer, thereby waiving that defense.  The Supreme Court granted the defendant’s motion, finding that privity is an essential element of a breach of contract claim and allowing the defendant to amend its answer to add the defense of privity.  The court emphasized that this was a matter of judicial discretion, and the defense appeared to have merit, the general rule being that an owner has no privity with a subcontractor.  Here, the court found no clear language to the contrary.