| Kung v Zheng |
| 2010 NY Slip Op 04148 [73 AD3d 862] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Lucy Kung et al., Appellants, v Jimmy Zheng, AlsoKnown as Zhen Zhuo Ping, et al., Defendants, and George K. Jeng,Respondent. |
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In an action, inter alia, to recover damages for breach of contract and architecturalmalpractice, the plaintiffs appeal from an order of the Supreme Court, Queens County(Rosengarten, J.), entered October 9, 2009, which granted that branch of the motion of thedefendant George K. Jeng which was for summary judgment dismissing the complaint insofar asasserted against him.
Ordered that the order is reversed, on the law, with costs, and that branch of the motion ofthe defendant George K. Jeng which was for summary judgment dismissing the complaintinsofar as asserted against him is denied.
The plaintiffs Lucy Kung and York Yu Perng Tang purchased a house in Flushing, Queens.Thereafter, they decided to demolish the existing house and to build a new house on the site. Theplaintiffs hired the defendant Jimmy Zheng, also known as Zheng Zhuo Ping, of the defendantShin Yang Construction, as the general contractor. The plaintiffs also entered into a writtencontract with the defendant George K. Jeng, an architect, in connection with this project. Theplaintiffs commenced this action against Zheng, Shin Yang Construction, and Jeng, seekingdamages, inter alia, for breach of contract and architectural malpractice. The plaintiffs alleged,among other things, that as a result of faulty design and/or faulty construction, water infiltratedthe house and caused a mold condition. As relevant here, Jeng moved, inter alia, for summaryjudgment dismissing the complaint insofar as asserted against him, and the Supreme Courtgranted that branch of the motion.
Contrary to the plaintiffs' contention, the Supreme Court providently exercised its discretionin entertaining Jeng's summary judgment motion, even though it was made more than 120 daysafter a note of issue was filed (see CPLR 3212 [a]). Under the circumstances of this case,Jeng demonstrated "good cause" for the delay in making his motion, since, inter alia, the note ofissue was filed while there was significant discovery outstanding (Brill v City of New York, 2 NY3d648, 652 [2004]; see Gonzalez v 98 Mag [*2]LeasingCorp., 95 NY2d 124, 129 [2000]; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 745 [2008]; Sclafani v Washington Mut., 36 AD3d682, 682 [2007]).
However, on the merits, the Supreme Court erred in granting that branch of Jeng's motionwhich was for summary judgment dismissing the complaint insofar as asserted against him. " 'Aclaim of professional negligence requires proof that there was a departure from the acceptedstandards of practice and that the departure was a proximate cause of the injury' " (Estate ofBurke v Repetti & Co., 255 AD2d 483 [1998], quoting Georgetti v United Hosp. Med.Ctr., 204 AD2d 271, 272 [1994]). Here, Jeng established his prima facie entitlement tojudgment as a matter of law dismissing the complaint insofar as asserted against him based on,inter alia, the affidavit of a licensed architect, who opined that Jeng's architectural plans anddesigns were proper, conformed to applicable professional standards, and did not deviate fromthe design as intended (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).The plaintiffs' contention as to belated disclosure regarding Jeng's expert is not properly beforethis Court (see Matter of Bart v Miller, 302 AD2d 379 [2003]).
However, in opposition to Jeng's prima facie showing, the plaintiffs submitted, among otherthings, an affidavit of an expert holding a Bachelor of Architecture degree and a Masters in RealEstate, with extensive experience in construction, who stated that he was familiar witharchitectural standards in the State of New York. This expert inspected the premises, reviewedthe architectural plans, and explained why, in his opinion, there had been a deviation fromaccepted architectural and building standards. Contrary to the Supreme Court's determination,the affidavit of the plaintiffs' expert was sufficient to raise a triable issue of fact (see Hall vYonkers Professional Hosp., 115 AD2d 637 [1985]).
Furthermore, in opposition to Jeng's prima facie showing that the scope of hisresponsibilities, as defined by his contract with the plaintiffs, excluded controlled inspectionsand construction phase field visits, the plaintiffs succeeded in raising triable issues of fact (see Tiffany at Westbury Condominium vMarelli Dev. Corp., 40 AD3d 1073, 1075-1076 [2007]; Board of Educ. of City ofN.Y. v Mars Assoc., 133 AD2d 800, 801 [1987]; see also QB, LLC v A/R Architects, LLP, 19 AD3d 675, 677[2005]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Accordingly, the Supreme Court erred in granting that branch of Jeng's motion which wasfor summary judgment dismissing the complaint insofar as asserted against him. Dillon, J.P.,Miller, Dickerson and Chambers, JJ., concur.