| Bruno v Trus Joist a Weyerhaeuser Bus. |
| 2011 NY Slip Op 06335 [87 AD3d 670] |
| August 23, 2011 |
| Appellate Division, Second Department |
| Steven Bruno et al., Appellants, v Trus Joist aWeyerhaeuser Business, Individually and as Subsidiary of Weyerhaeuser Company, Defendant,Lakeland Lumber Corporation, Appellant, and Joseph F. Galea, AIA Architect, Respondent.(And Third-Party Actions.) |
—[*1] Brand Glick & Brand, P.C., Garden City, N.Y. (Seth D. Cohen of counsel), fordefendant-appellant. Francis J. O'Reilly, Mahopac, N.Y., for respondent.
In an action, inter alia, to recover damages for architectural malpractice, the plaintiffs appeal,as limited by their brief, from so much of an order of the Supreme Court, Putnam County(O'Rourke, J.), dated November 2, 2009, as granted that branch of the motion of the defendantJoseph F. Galea which was for summary judgment dismissing the complaint insofar as assertedagainst him, and the defendant Lakeland Lumber Corporation separately appeals from so muchof the same order as granted the motion of the defendant Joseph A. Galea for summary judgmentdismissing the complaint and all cross claims insofar as asserted against him.
Ordered that the appeal by the defendant Lakeland Lumber Corporation from so much of theorder as granted those branches of the motion of the defendant Joseph A. Galea which were forsummary judgment dismissing the complaint and the cross claims of the defendant Trus Joist aWeyerhaeuser Business insofar as asserted against him is dismissed, as the defendant LakelandLumber Corporation is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144,156-157 [2010]); and it is further,
Ordered that the order is affirmed insofar as appealed from by the plaintiffs and insofar asreviewed on the appeal by the defendant Lakeland Lumber Corporation; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The plaintiffs allege that in May 2000, the plaintiff Steven Bruno, as agent for the plaintiffSDR Design Interiors (hereinafter SDR), entered into an oral agreement with the defendantJoseph F. Galea, pursuant to which Galea agreed to perform architectural and design services forBruno in connection with the construction of Bruno's residence in Putnam Valley. Pursuant to theoral agreement, Galea prepared stamped architectural plans, which were filed with and approvedby [*2]the Town of Putnam Valley Building Department(hereinafter the Building Department) on July 25, 2000. Notably, Galea's plan called for the useof 2-inch-by-12-inch traditional wood joists, and was based on standard finishes and materials.
Thereafter, the plaintiffs unilaterally decided to use manufactured wood joists, which containcomposite wood materials, instead of the wood joists set forth in Galea's architectural plan, andchose the Trus Joist I-Beam system, manufactured by the defendant Trus Joist a WeyerhaeuserBusiness (hereinafter Trus Joist). Subsequently, SDR, as agent for Bruno, retained the defendantLakeland Lumber Corporation (hereinafter Lakeland) to design, manufacture, and/or supply theframing system for the project. Unbeknownst to the plaintiffs, a company known as Prime Sourceprepared additional plans for the framing system for Lakeland and/or Trus Joist, which providedfor the use of Trus Joist products for the framing. In late September 2001, shortly after the housewas completed and Bruno, his companion Sharon D. Robbins, and their family took upresidency, cracks developed in the heavy stone flooring and ceramic tile flooring used in much ofthe first floor.
On or about September 29, 2004, the plaintiffs commenced this action against Trus Joist,Lakeland, and Galea to recover damages for breach of contract, architectural malpractice, breachof express and implied warranties, and negligent misrepresentation. Each of the defendantsseparately answered, denying the material allegations of the complaint, and asserting cross claimsagainst each other for indemnification.
Ultimately, Galea moved for summary judgment dismissing the complaint and all crossclaims insofar as asserted against him, arguing, inter alia, that he did not depart from acceptedstandards of architectural practice, and that the services he performed were not the proximatecause of the plaintiffs' alleged damages. The plaintiffs and Lakeland separately opposed themotion. The Supreme Court granted the motion on the ground that "Mr. Galea's drawings were. . . altered and completely changed by the plaintiffs. The building constructed wasnot in accordance with Mr. Galea's original drawings approved by the building department." Inits order, the Supreme Court, relying on a letter from SDR to Galea dated May 18, 2003, andsubmitted by Galea in support of his motion, concluded that SDR "acknowledges that [theplaintiffs] made unilateral decisions to change the design and structural load bearing by using theengineered joist product in lieu of lumber upon which Mr. Galea prepared his calculations.Plaintiff[s] also used ceramic tiles and stone[,] which increased the weight on all fitting beamswhich they chose to install." The plaintiffs and Lakeland separately appeal. We affirm the orderinsofar as appealed from by the plaintiffs, and insofar as reviewed on Lakeland's appeal.
"A claim of professional negligence requires proof that there was a departure from theaccepted standards of practice and that the departure was a proximate cause of the injury" (Kung v Zheng, 73 AD3d 862, 863[2010] [internal quotation marks omitted]; see Estate of Burke v Repetti & Co., 255AD2d 483 [1998]).
Here, Galea established, prima facie, that his stamped architectural plan, which was approvedby the Building Department on July 25, 2000, was neither a departure from the acceptedstandards of practice nor a proximate cause of the plaintiffs' alleged damages (see generallyAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In his affidavit, Galea averred that,after submitting his stamped architectural plan in July 2000, he had no further involvement withthe project. He further asserted that it was only during an informal visit to the completed houseon May 18, 2003, that he first realized that manufactured wood product had been used for thejoists and beams instead of the 2-inch-by-12-inch traditional wood floor joists and beams he hadspecified in his plan, and that certain support beams and columns included in his plan had notbeen installed. Galea opined that the omissions and revisions to his architectural plan may havecaused the structural integrity of the building to be inadequate, causing the floor problems.
In his affidavit, Galea also asserted that it was only during his visit on May 18, 2003, that hefirst realized that the plaintiffs had used heavy-weight stone and tile in their home, of which theplaintiffs had not informed him when he had prepared the architectural plan. In making thisassertion, Galea referred to a letter to him from SDR, dated May 18, 2003, and signed byRobbins, an SDR principal, which set forth a chronology of events indicating that it was onlyafter the [*3]Building Department had approved his architecturalplan that the plaintiffs unilaterally decided to substitute the Trus Joist system for the traditionalwood framing materials he had specified. Galea also alleged, based on this letter, that theplaintiffs had decided to install radiant floor heating, that they believed manufactured woodframing was better suited to that type of heating system than traditional wood framing becauseuse of manufactured wood framing made installation of the radiant floor heating system easier,and that they believed that manufactured wood joists would shrink less than traditional woodjoists, which the plaintiffs concluded was better suited to their decision to install ceramic floortile and stone on much of the first floor. Galea also submitted excerpts of the depositiontestimony of the subcontractor who framed the house, who testified that it was Robbins's idea touse manufactured wood joists, and that Robbins first announced this decision after constructionhad begun.
In opposition, the plaintiffs and Lakeland failed to raise a triable issue of fact (seegenerally Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Although the plaintiffs contend that, prior to Galea'scompletion of the architectural plan, they told him of their intent to use stone and tile on the firstfloor, and that they wished to use manufactured wood joists, it is undisputed that Galea'sarchitectural plan called for the use of 2-inch-by-12-inch traditional wood joists. Indeed, evenaccepting the plaintiffs' assertion that they told Galea of their desire to use manufactured woodjoists before he completed his architectural plan, the final plan clearly specified the use of2-inch-by-12-inch wood joists. Accordingly, the plaintiffs' contentions that Galea never advisedthem against using manufactured wood joists and did not advise them that his original structuraldesign would need to be revised if manufactured wood was used instead of traditional lumberfailed to raise a triable issue of fact, as Galea's final architectural plan established that heultimately approved only the use of manufactured wood joists.
In an affidavit submitted by Robbins, she disputed Galea's assertion that he was not involvedwith the project after filing his architectural plans with the Building Department in July 2000.Robbins asserted that, after July 2000, but before construction began in October 2000, sheconsulted with Galea about changes to his plan that involved the creation of a full basement,rather than a crawl space, and an alteration that involved, among other things, shifting afoundation wall and changing the orientation of the basement joists. Even accepting the plaintiffs'assertion that these consultations occurred after July 2000, the plaintiffs failed to raise a triableissue of fact, in light of Galea's undisputed insistence that the plaintiffs use 2-inch-by-12-inchwood joists. In any event, the documents submitted in support of this contention did not indicate,in the first instance, that, during these consultations, the plaintiffs informed Galea that they haddecided to use manufactured wood joists despite his specification of traditional wood joists, orthat they would be using stone and tile on much of the first floor. More critically, the reviseddrawings that purportedly resulted from Robbins's post-July 2000 consultation with Galea wereprepared by SDR, not Galea. Further, the plaintiffs concede that Lakeland's price estimate forsupplying the Trus Joist materials was based on the Prime Source drawings, and that the PrimeSource drawings differ from Galea's architectural plan in both beam sizes and framing spacing.
Although the plaintiffs' expert opined, in his affidavit, that Galea's original, approvedarchitectural plan contained an improper structural load design, the Trus Joist materials wereprovided pursuant to the Prime Source drawing, not Galea's approved architectural plan.Accordingly, the expert's opinion that Galea's architectural plan constituted a design defect thatproximately caused the defects in the subject home is not relevant and, therefore, failed to raise atriable issue of fact, as the plaintiffs did not use Galea's plan.
Although the Supreme Court granted Galea's motion in its entirety, without explicitly settingforth the grounds for dismissal of the nonmalpractice causes of action asserted against him,summary dismissal of all of the causes of action was nonetheless appropriate, since the remainingcauses of action, insofar as asserted against Galea, were duplicative of the professionalmalpractice cause of action, as they arose from the same facts and do not allege distinct damages(see Alizio v Feldman, 82 AD3d804 [2011]; Town of Wallkill vRosenstein, 40 AD3d 972, 974 [2007]).
Accordingly, the Supreme Court properly granted Galea's motion for summary judgmentdismissing the complaint and Lakeland's cross claims insofar as asserted against him. Dillon,J.P., Belen, Sgroi and Miller, JJ., concur.