PELHAM, N.Y. (July 14, 2026) — WHITE PLAINS, NY (January 20, 2026) — A Westchester Supreme Court judge dismissed an architect’s third-party claims against the contractor who built out a Pelham daycare facility at the center of a construction-defect lawsuit, a ruling the architect has since appealed as a separate discovery dispute has emerged in the underlying case.
In a Decision and Order dated Jan. 20, 2026, the Hon. Charles D. Wood, J.S.C., granted a motion by third-party defendant StructureCraft Contracting LLC to dismiss, in its entirety, the third-party complaint brought against it by defendant KTM Architect, PLLC, formally Kimberly Tutera Martelli, Architect, PLLC. KTM had impleaded StructureCraft, the general contractor on the 629 Fifth Avenue, Pelham fit-out, on July 31, 2025, seeking common law indemnification, contribution, contractual indemnification, breach of contract for failure to procure insurance, and professional malpractice/negligence, according to the order.
The order restated the underlying dispute: Anna & Jack’s Treehouse, LLC sued KTM in April 2022 for breach of contract and professional malpractice because the New York State Office of Children and Family Services licensed the completed Pelham daycare for 80 children, not the 86 called for in KTM’s architectural drawings, and because the complaint alleges KTM failed to confirm that classroom dimensions complied with applicable state and fire codes.
On the third-party claims against StructureCraft, the court’s order gave the following reasoning:
The contractual indemnification and breach of contract claims were dismissed because KTM’s third-party complaint never alleged the existence of any contract between KTM and StructureCraft, and did not allege that KTM was an intended third-party beneficiary of the separate contract between Anna & Jack’s and StructureCraft, according to the order.
The common law indemnification and contribution claims were dismissed under Cobblestone Foods, LLC v. Branded Concept Dev., Inc., 200 AD3d 845 (2d Dept 2021). The court found that although Anna & Jack’s claim against KTM is framed as negligence and malpractice, it in substance alleges KTM failed to perform its own contractual obligation to comply with applicable codes, precluding a contribution claim, and that because Anna & Jack’s is not seeking to hold KTM vicariously liable for StructureCraft’s conduct, common law indemnification does not apply, the order states.
The professional malpractice and negligence claim was dismissed because the third-party complaint did not allege that StructureCraft owed KTM a duty, according to the order.
KTM filed a notice of appeal February 9, taking the dismissal to the Appellate Division, Second Department. The appeal is listed as interlocutory, challenging Wood’s dismissal of all five third-party causes of action. The Appellate Division confirmed to Talk of the Sound that the appeal is pending under Docket No. 2026-01780. As of July 14, no appellant’s brief had been accepted for filing; a Deputy Clerk said the appeal would not be calendared for oral argument until it is perfected
While the appeal of the StructureCraft dismissal proceeds separately, the core case between Anna & Jack’s and KTM continues in Westchester Supreme Court and has generated a discovery dispute. By stipulation so-ordered by Judge Wood on May 5, 2026, KTM was directed to produce specified discovery by July 1, 2026. KTM’s response, filed July 7, 2026, six days after the court-ordered deadline, asserted a series of objections alongside limited answers, according to filings.
In a July 10, 2026 letter to KTM’s counsel, Kara M. Nelson of Brooks & Berne, plaintiff’s counsel Paul V. Lucas Jr. of Cohen Seglias Pallas Greenhall & Furman argued that KTM’s late response forfeited its ability to raise most objections under Khatskevich v. Victor, 184 A.D.3d 504 (1st Dept. 2020), which holds that a party who fails to timely respond to a disclosure demand may object only on grounds of privilege or palpable impropriety, according to the letter.
Lucas’s letter identified two specific deficiencies. The stipulation directed KTM to identify all codes, rules or regulations, other than 18 NYCRR § 418-1, relied upon in calculating minimum square footage for the infant and toddler rooms. KTM’s response led with the excluded provision, cited only broad categories of authority such as “the 2020 New York State Uniform Building Code” and “the Village of Pelham Zoning Ordinance” without specific sections, and stated the response was “not all inclusive,” reserving the right to supplement, language Lucas’s letter said contravened the court’s order.
The stipulation also directed KTM to confirm that its final native AutoCAD drawings represent the as-built version of the project. KTM’s response stated the drawings “represent what was intended to be” the as-built version, a qualifier Lucas’s letter said fell short of the unequivocal confirmation the court had ordered.
The letter, sent as a good-faith effort to resolve the deficiencies ahead of a July 14, 2026 compliance conference, warned that absent a timely cure, plaintiff would seek to compel compliance and pursue sanctions including preclusion, striking of pleadings, an adverse inference, and costs and fees.
That conference, originally scheduled for July 14, was adjourned by Justice Wood to July 28 at 11 a.m., to be held via Microsoft Teams, according to a July 13 court notice.
KTM’s discovery response also touched on a separate matter. In response to a post-deposition demand asking KTM to describe the basis of a disagreement regarding a code requirement on a different project, a daycare buildout at 138 Centre Avenue in New Rochelle, also for Anna & Jack’s Treehouse, KTM’s response stated only that architect Kimberly Tutera Martelli had testified to the best of her recollection on the subject at her deposition and had no further information beyond that testimony. Talk of the Sound has not reviewed the underlying deposition transcript and cannot yet characterize the nature or substance of that disagreement; it is noted here only because it surfaced in the Pelham case’s discovery record and involves a separate KTM-designed project for the same daycare operator.
As of this writing, the discovery dispute in the trial court remains unresolved pending the July 28, 2026 compliance conference, and KTM’s appeal of the StructureCraft dismissal remains pending before the Second Department without an assigned case number. Talk of the Sound has requested a status update from the Second Department Clerk.
**Editor’s note:** Talk of the Sound continues reporting on matters of public record concerning Robert P. Rubicco and associated entities. On July 9, 2026, four plenary summonses (Record Nos. 3331, 3337, 3338, 3339/2026P) were served on the undersigned by Sheehan & Partners LLP on behalf of Rubicco-associated LLCs in the Irish High Court. This article, like others in this series, is based on court filings and public records.
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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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