| Talon Air Servs. LLC v CMA Design Studio, P.C. |
| 2011 NY Slip Op 06082 [86 AD3d 511] |
| July 28, 2011 |
| Appellate Division, First Department |
| Talon Air Services LLC, Appellant, v CMA Design Studio,P.C., Also Known as CMA Design Studio Architects-Planners, P.C., et al.,Respondents. |
—[*1] Gogick, Byrne & O'Neill, LLP, New York (Stephen P. Schreckinger of counsel), for CMADesign Studio, P.C., respondent. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Lee J. Sacket of counsel), forKevin Koubek, P.E., respondent.
Appeal from order, Supreme Court, New York County (Jane S. Solomon, J.), enteredSeptember 8, 2009, which granted defendant Koubek's motion for summary judgment dismissingthe complaint as against him, deemed appeal from judgment, same court and Justice, enteredJanuary 6, 2010 (CPLR 5501 [c]), and, so considered, said judgment unanimously affirmed, withcosts. Order, same court and Justice, entered September 8, 2009, which granted defendant CMADesign Studio's motion for summary judgment dismissing the complaint as against it,unanimously affirmed, with costs.
Plaintiff Talon Air Services LLC brought this action for professional malpractice and breachof contract against defendants Kevin Koubek, P.E. (Koubek) and CMA Design Studio, P.C.(CMA) in connection with the construction of an aircraft hangar owned and operated by plaintiff.Plaintiff alleges that defendants submitted plans and specifications to the Suffolk CountyDepartment of Health Services (DHS) for a single-walled sanitary waste trench, but, because thehangar was to be used for maintenance, a double-walled hazardous waste trench was requiredpursuant to the Suffolk County Sanitary Code § 760-1210 (article 12). Plaintiff alleges thatit suffered damages when it had to replace the single-walled trench with a double-walled trench.
The following facts are established in the record: In or around January 2004, plaintiff enteredinto an agreement with Atlantic Aviation Services (Atlantic) to jointly sublease land andconstruct a 30,000-square-foot hangar and 8,000 square feet of office space. On February 3,2004, plaintiff entered into an agreement with Koubek for mechanical, electrical and plumbingengineering design services including "design[ing] and detail[ing] . . . required sitedrainage for the new tarmac area and any required oil separators for the hangar region." On July9, 2004, plaintiff entered into an agreement with CMA for architectural services. Mechanical andstructural engineering services were specifically excluded from CMA's contract.
Construction of the hangar commenced in June 2004. On July 26, 2004, Atlantic submittedan application to the Suffolk County Department of Health Services (DHS) for sewage disposalfacilities and water supply systems, which [*2]described thehangar as a "New aircraft storage hangar, w/o service or maintenance work." When asked in aDepartment of Public Works application to list "all . . . processes" to be performedat the hangar, Atlantic responded "N/A Aircraft washing."
On May 2, 2005, plaintiff's vice-president wrote to DHS to confirm that "the only operationsconducted in [the hangar] will be the washing of aircraft." In a reply letter dated May 3, 2005,DHS verified that there would be no "aircraft engine maintenance performed that wouldnecessitate oil changes, hydraulic and brake fluid replacement, painting of aircraft exteriors orany other activity using toxic or hazardous materials." DHS further verified that, based uponplaintiff's declarations, the operation would be viewed as a "vehicle wash station."
DHS stated in the letter that "double-walled equipment [was not required] to be installedwithin the hangar" and that the "single-walled oil water separator can remain in place and doesnot need a permit from this office." DHS further stated that "[s]hould the use of the hangarbuilding change to include maintenance activities using toxic or hazardous materials, youroperation will be reclassified and the proper double-walled equipment will have to be installed."In a separate memorandum from DHS to Koubek dated May 6, 2005, DHS confirmed that the"vehicle/airplane wash system incorporation is exempt from Article 12 requirements."
The hangar and trench were put into operation in June 2005 and inspected by DHS on July 5,2005. DHS concluded that plaintiff was occupying the hangar and improperly discharging wasteinto a sewage facility without "final approval." Because plaintiff was authorized to dischargeonly sanitary waste, "any wastewater generated from the hangar area [could] not be discharged tothe sewer."
The drain for the trench was subsequently plugged and capped while a double-walled trenchand oil water separator were installed. On August 2, 2007, plaintiff initiated this action allegingthat as a result of defendants' failure to properly design the trench, the hangar was not fullyfunctional until July 2007 when the double-walled trench was completed.
Plaintiff's president testified at deposition that plaintiff "always" intended to use the hangarfor maintenance, and that "[e]veryone knew it." However, later in the deposition, he admitted thatthe decision to perform maintenance was made after May 2005. Plaintiff's president concededthat as of May 6, 2005, plaintiff did not intend to use or store any toxic or hazardous materials inthe hangar.
On March 26, 2009, Koubek moved for summary judgment dismissal of the complaintagainst him on the grounds that plaintiff represented to DHS that the hangar would only be usedfor storage and washing, and that DHS had determined that article 12 was not applicable. Koubekasserts that his plans and specifications, including the single-walled trench, were consistent withgood and accepted engineering practices.
On March 31, 2009, CMA also moved for summary judgment dismissal on the grounds that,inter alia, Koubek, not CMA, was responsible for the design and specifications of the trench.CMA maintains that it rendered services in accordance with accepted architectural designstandards.
Plaintiff cross-moved for summary judgment on May 14, 2009. In support, plaintiffsubmitted, inter alia, the expert opinion of the engineer who was hired by plaintiff to design thedouble-walled trench that replaced the single-walled trench. Based on his review of defendants'site drawings as well as a site visit, plaintiff's expert opined that defendants' work did not meetgenerally accepted industry standards because the trench did not comply with article 12. Hestated that Koubek's use of another engineer's designs deviated from standard practices, and that[*3]it is "patently improper for any licensed design professional. . . to advise a client to commence construction prior to the issuance of anynecessary . . . permits."
Plaintiff's expert concluded that completion of the project in compliance with article 12"enabled the [h]angar to operate as originally intended by [plaintiff]," including the storage oftoxic or flammable materials. The expert further opined that article 12 would "likely" beapplicable to the project even if the hangar was only used for washing aircraft because washingaircraft "could" release toxic materials.
On September 8, 2009, the motion court granted defendants' motions for summary judgment.The court found that CMA was not contractually responsible for designing the trench andperformed no work on the trench. The court also found that the allegation that Koubek breachedhis contract by failing to design the trench in accordance with article 12, "for which there was anapplied for, documented, and utilized exemption, is implausible on its face."
The court concluded that the proximate cause of plaintiff's injury was not "the completion ofthe project in compliance with the declared intended use," but plaintiff's "change in the intendeduse, for which [plaintiff] alone is responsible." On appeal, plaintiff argues that the motion courterred in disregarding the opinion of its expert. Plaintiff also argues that the motion court"conflated" the claims against Koubek and CMA, and that the claims against CMA stem from itsselection of Koubek for the project and its advice to plaintiff to commence construction prior tothe issuance of necessary permits.
For the following reasons, we affirm. Defendants established prima facie that they wereneither negligent nor breached their contracts (see generally Alvarez v Prospect Hosp., 68NY2d 320 [1986]). Defendants submitted evidence that plaintiff represented to DHS that itintended to use the hangar only for the storage and washing of aircraft and that there would be notoxic or hazardous materials on the premises. Defendants further demonstrated that based onthese representations, DHS determined that the project was exempt from the requirements ofarticle 12, and a double-walled trench was not required. CMA also submitted evidence that it hadno contractual duty regarding the planning and installation of the trench.
In opposition, plaintiff failed to raise a triable issue of fact. A claim of professionalmalpractice "requires proof that there was a departure from accepted standards of practice andthat the departure was a proximate cause of the injury" (D.D. Hamilton Textiles v Estate ofMate, 269 AD2d 214, 215 [2000], citing Georgetti v United Hosp. Med. Ctr., 204AD2d 271 [1994]). No such showing was made here.
Plaintiff failed to adduce credible expert testimony that defendants deviated from locallyprevailing standards of practice (seeTower Bldg. Restoration v 20 E. 9th St. Apt. Corp., 7 AD3d 407, 408 [2004], citing530 E. 89 Corp. v Unger, 43 NY2d 776 [1977]). An expert's opinion, which is not supported,and indeed is refuted by facts established in the record, has little probative value (see Cassanov Hagstrom, 5 NY2d 643, 646 [1959] [a witness may not reach his conclusion by assumingmaterial facts not supported by evidence]; Cillo v Resjefal Corp., 16 AD3d 339, 340 [2005], citing Castro v New York Univ., 5 AD3d135 [2004]; see e.g. Gerber TradeFin., Inc. v Skwiersky, Alpert & Bressler, LLP, 12 AD3d 286 [2004], lv denied4 NY3d 705 [2005]).
Here, plaintiff's expert's opinion, that the trench design was inadequate because it did notcomply with article 12, presumes that article 12 was applicable to plaintiff's project when thetrench was designed. However, as plaintiff testified, the decision to perform maintenance was notmade until the month before construction was completed. The record establishes that until thattime, the intended use of the hangar was limited to aircraft washing, article 12 did not apply,[*4]and no permits for double-walled equipment were required.Furthermore, his assertion that defendants should have anticipated that article 12 would "likely"apply to aircraft washing is plainly controverted by the DHS's contrary determination (see e.g.Lynn G. v Hugo, 96 NY2d 306, 310 [2001]).
Plaintiff's expert opined that Koubek's use of plans from a different project and failure tofamiliarize himself with article 12 were deviations from accepted practice. Even were we toagree, such deviations were not the proximate cause of plaintiff's injury. Rather, it is plaintiff'sown conduct—changing the intended use of the hanger—that proximately caused itsinjury (see e.g. D.D. Hamilton Textiles, 269 AD2d at 215 ["(p)laintiffs' ultimate failure toaddress . . . whether their dilemma was the result of their own malfeasance. . . highlights the insufficiency of their contention that there was a departure fromaccepted standards"]; Gerber Trade Fin., Inc., 12 AD3d at 286).
The same infirmities afflict plaintiff's contract claim against Koubek. Koubek's design of asingle-walled trench is not breach of "an implied promise to exercise due care" (17 Vista FeeAssoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 84 [1999] [internal quotationmarks omitted]), because, based on plaintiff's representations, DHS had determined that adouble-walled trench was not required.
Plaintiff's argument that CMA improperly selected Koubek as the mechanical engineer onthe project is unavailing. Neither the complaint nor the bill of particulars includes such a claim.In any event, CMA was not responsible, under its agreement, for the selection of the mechanicalengineer; plaintiff contracted directly with Koubek.
We have considered plaintiff's remaining contentions and find them meritless.Concur—Andrias, J.P., Catterson, Moskowitz, Abdus-Salaam and RomÁn, JJ.[Prior Case History: 2009 NY Slip Op 32027(U).]