PELHAM, NY (July 13, 2026) — The architect being sued over a daycare buildout at 629 Fifth Avenue has brought the project’s general contractor into the case, arguing the contractor — not the design — is responsible for a classroom capacity shortfall at the center of a lawsuit seeking more than $1 million in damages.
Anna & Jack’s Treehouse, LLC, the daycare business operated by Rob Rubicco, sued KTM Architect, PLLC in Westchester Supreme Court on April 12, 2022, over the buildout of the daycare facility in the Village of Pelham.
According to the complaint, the New York State Office of Children and Family Services issued a license for a total capacity of 80 children, six fewer than the 86 children the project’s design specifications anticipated. Anna & Jack’s alleges breach of contract and professional malpractice against KTM and claims damages in excess of $1,024,935.46.
On July 31, 2025, KTM filed a third-party summons and complaint impleading StructureCraft Contracting LLC, the general contractor retained for the project, under New York Civil Practice Law and Rules Section 1007. The third-party complaint asserts five causes of action against StructureCraft: common-law indemnification, contribution, contractual indemnification, breach of contract, and professional malpractice/negligence.
KTM’s complaint alleges StructureCraft was contractually obligated to build the facility according to KTM’s architectural drawings and specifications and failed to do so, and that the failure caused classrooms to fall short of the square footage required to license the anticipated number of children.
StructureCraft, through attorney John J. Loveless of Bleakley Platt & Schmidt, LLP, moved to dismiss the third-party complaint in its entirety on Oct. 10, 2025, returnable Nov. 21, 2025 before Hon. Charles D. Wood.
In a supporting affidavit, StructureCraft owner Daniel Ahern said the company’s only contract was with Anna & Jack’s — a proposal dated May 17, 2021 that references KTM’s architectural drawings dated March 29, 2021 and April 26, 2021. Ahern said StructureCraft never agreed in writing to indemnify KTM or to name KTM as an additional insured on any policy.
StructureCraft also cited an Affidavit of Substantial Completion that KTM submitted to the Village of Pelham Building Department on July 30, 2021, stating the work was “substantially complete and in accordance with the As-Built Architectural drawings dated 7/27/2021,” and the village’s resulting Certificate of Compliance issued the same day.
The motion additionally relies on a November 2022 Affidavit of Confession of Judgment, signed by Rubicco individually and on behalf of Anna & Jack’s Treehouse, acknowledging a debt of $193,549.94 owed to StructureCraft and stating Anna & Jack’s “has no claim or defense” to that amount. The document also states it “is not for the purposes of securing Plaintiff against any contingent liability.”
KTM opposed the motion on Dec. 3, 2025 through attorney Karl S. Rumph of Brooks & Berne, PLLC. The opposition argues the confession of judgment does not bind KTM because it was signed only by Rubicco and Anna & Jack’s, not by KTM, and that neither the substantial completion affidavit nor the underlying contract qualifies as documentary evidence sufficient for dismissal under CPLR 3211(a)(1) because both reference outside drawings that were not annexed to the motion.
An affidavit from KTM principal Kimberly Tutera Martelli states StructureCraft failed to meet minimum square footage shown on KTM’s drawings in at least two classrooms, which she said “contributed to a diminished number of pupils anticipated by KTM’s plans.” KTM’s opposition also cites a May 24, 2021 pre-construction meeting email from Martelli to StructureCraft’s project team stating, “Classroom minimum FINISHED square footages noted in plan MUST be maintain[ed] for student occupancy.”
StructureCraft’s reply, filed Dec. 18, 2025, argues KTM should be estopped from blaming StructureCraft’s construction after attesting to the village that the work complied with its own drawings. The reply also argues that under CPLR Section 1401 and case law, contribution claims do not apply to purely economic losses arising from a breach of contract, and that KTM’s common-law indemnification claim fails because Anna & Jack’s is suing KTM for its own alleged malpractice, not seeking to hold KTM vicariously liable for StructureCraft’s work.
According to the Westchester Supreme Court docket, the motion was marked “Fully Submitted” before Justice Wood on Dec. 12, 2025. As of the most recent compliance conference on the docket, no decision has been entered. The case has continued on its compliance-conference schedule, with conferences held Jan. 6, 2026 and April 21, 2026, one adjourned March 17, 2026, and another scheduled for July 14, 2026.
Editor’s note: On July 9, 2026, four plenary summonses (Record Nos. 3331, 3337, 3338, 3339/2026P) were served on Robert Cox by Sheehan & Partners LLP on behalf of Rubicco-associated LLCs in the Irish High Court. Talk of the Sound continues reporting on matters of public record.
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This article was prepared with the assistance of AI tools under the direction and editing of Robert Cox.
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