| 492 Kings Realty, LLC v 506 Kings, LLC |
| 2013 NY Slip Op 02710 [105 AD3d 991] |
| April 24, 2013 |
| Appellate Division, Second Department |
| 492 Kings Realty, LLC, et al., Respondents, v 506Kings, LLC, et al., Respondents, and Ismael Leyva Architects, P.C., et al., Appellants.(Action No. 1.) 506 Kings, LLC, Plaintiff, v Metrotech Construction of New York Corp.et al., Defendants. (Action No. 2.) Nissim Khalifeh, Plaintiff, v 506 Kings, LLC, et al.,Defendants, Concrete Structures, Inc., Respondent, and Soil Solutions, Inc., Appellant.(Action No. 3.) 492 Kings Realty, LLC, et al., Plaintiffs, v 506 Kings, LLC, et al.,Defendants. (Action No. 4.) |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Glenn J. Fuerthand Judy C. Selmeci of counsel), for appellant Domani Consulting, Inc. L'Abbate Balkan Colavita & Contini, Garden City, N.Y. (Keith J. Stevens ofcounsel), for appellant Goldstein Associates, Inc. Edward Garfinkel (McGaw, Alventosa & Zajac, Jericho, N.Y. [Joseph Horowitz], ofcounsel), for appellant Soil Solutions, Inc. Charles J. Siegel, New York, N.Y. (Peter Edward Vairo of counsel), for appellantMidtown Equities, LLC. Ressler & Ressler, New York, N.Y. (Bruce J. Ressler and Ellen R. Werther ofcounsel), for plaintiffs-respondents. Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Kevin G.[*2]Faley of counsel), for defendant-respondent SDGEngineering, Inc. O'Connor Redd LLP, White Plains, N.Y. (Peter Urreta of counsel), fordefendant-respondent Concrete Structures, Inc.
In four related actions, inter alia, to recover damages for injury to property, IsmaelLeyva Architects, P.C., Domani Consulting, Inc., Goldstein Associates, Inc., andMidtown Equities, LLC, defendants in action Nos. 1 and 4, separately appeal, as limitedby their briefs, from so much of an order of the Supreme Court, Kings County(Rothenberg, J.), dated June 2, 2011, as denied those branches of their respective motionswhich were for summary judgment dismissing the complaint and all cross claims insofaras asserted against each of them in action No. 1, and Soil Solutions, Inc., a defendant inaction Nos. 1 and 3, separately appeals, as limited by its brief, from so much of the sameorder as granted the motion of Concrete Structures, Inc., a defendant in action Nos. 1 and3, for summary judgment dismissing the complaint and all cross claims insofar asasserted against it in action Nos. 1 and 3.
Ordered that the appeal by Soil Solutions, Inc., from so much of the order as grantedthose branches of the motion of Concrete Structures, Inc., which were for summaryjudgment dismissing the complaint and the cross claims of 506 Kings, LLC, MidtownEquities, LLC, Ismael Leyva Architects, P.C., Goldstein Associates, Inc., SDGEngineering, Inc., Domani Consulting, Inc., and Metrotech of New York Corp. insofarasserted against it in action No. 1 and for summary judgment dismissing the complaintand the cross claim of 506 Kings, LLC, insofar as asserted against it in action No. 3, isdismissed, as Soil Solutions, Inc., is not aggrieved by those portions of the order (seeCPLR 5511; Mixon v TBV,Inc., 76 AD3d 144, 156-157 [2010]); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereofdenying those branches of the respective motions of the defendants Ismael LeyvaArchitects, P.C., Domani Consulting, Inc., and Goldstein Associates, Inc., which werefor summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them in action No. 1, and substituting therefore a provision granting thosebranches of the respective motions; as so modified, the order is affirmed insofar asreviewed; and it is further,
Ordered that one bill of costs is awarded to the appellants Ismael Leyva Architects,P.C., and Goldstein Associates, Inc., payable by the respondents 492 Kings Realty, LLC,Kosher Corner Supermarkets, and SDG Engineering, Inc., appearing separately andfiling separate briefs, one bill of costs is awarded to the appellant Domani Consulting,Inc., payable by the respondents 492 Kings Realty, LLC, and Kosher CornerSupermarkets, one bill of costs is awarded to the respondent Concrete Structures, Inc.,payable by the appellant Soil Solutions, Inc., and one bill of costs is awarded to therespondents 492 Kings Realty, LLC, Kosher Corner Supermarkets, and SDGEngineering, Inc., appearing separately and filing separate briefs, payable by theappellant Midtown Equities, LLC.
The building on Kings Highway in Brooklyn that is the subject of these actions isowned by 492 Kings Realty, LLC (hereinafter 492 Kings), and leased to Kosher CornerSupermarket, Inc. (hereinafter Kosher Corner). In or about 2006, adjoining propertyowner 506 Kings, LLC (hereinafter 506 Kings), in preparation for the construction of abuilding on its property, hired the defendant SDG Engineering, Inc. (hereinafter SDG),to design the underpinning and shoring intended to protect the surrounding properties,and hired the defendant Metrotech of New York Corp. (hereinafter Metrotech) toperform the underpinning work. In September 2006, the building owned by 492 Kingspartially collapsed.
In an investigative report, SDG's principal, Stuart D. Gold, P.E., stated that theunderpinning plans had called for 24-inch thick underpins, and that an examination ofthe unearthed underpins disclosed that they ranged in thickness from 16 to 24 inches.Gold further stated that torrential rains had occurred on the day of the collapse. Gold'sreport concluded that the mode of failure was sliding due to a combination of soilliquefaction and underpin thickness smaller than 24 inches.[*3]
Four actions arose out of the collapse. KosherCorner and 492 Kings (hereinafter together the plaintiffs) commenced Action No. 1, interalia, to recover for damage to property against 506 Kings, SDG, Metrotech, MidtownEquities, LLC (hereinafter Midtown), the alleged project manager for the constructionproject, Ismael Leyva Architects, P.C. (hereinafter ILA), the architect for the newbuilding, Goldstein Associates, Inc. (hereinafter Goldstein), the structural engineer forthe new building, Domani Consulting, Inc. (hereinafter Domani), a contractor hired to,among other things, monitor concrete strength, Soil Solutions, Inc. (hereinafter SSI), anexcavator, and Concrete Structures, Inc. (hereinafter CSI), a concrete contractor. NissimKhalifeh, an employee of Kosher Corner, commenced action No. 3 against 506 Kings,CSI, SSI, and others to recover damages for personal injuries he allegedly sustained as aresult of the collapse. Action Nos. 2 and 4 are not at issue on this appeal.
The Supreme Court should have granted those branches of the respective motions ofILA and Goldstein which were for summary judgment dismissing the complaint and allcross claims insofar as asserted against them in action No. 1. " '[A] contractualobligation, standing alone, will generally not give rise to tort liability in favor of a thirdparty' " (Stiver v Good & FairCarting & Moving, Inc., 9 NY3d 253, 257 [2007], quoting Espinal vMelville Snow Contrs., 98 NY2d 136, 138 [2002]; see Church v CallananIndus., 99 NY2d 104, 111 [2002]). In support of its motion, ILA tendered itscontract proposal, its schematic drawings, and the affidavit of its project architect, whichdemonstrated that the plaintiffs were not a party to the agreement and that ILA was notretained for, nor did it provide, any services related to the methods utilized to protect theplaintiffs' property. In support of its motion, Goldstein submitted, inter alia, its contractproposal, a complete set of drawings, and the affidavit of its principal Michael Guilfoyle,P.E. According to Guilfoyle, although Goldstein's schematic underpinning detailsuggested the installation of certain underpinning in connection with the project, the"detail was intended to alert the contractor that underpinning will probably be necessary"and "was clearly not intended to be utilized as a construction drawing." Goldstein alsosubmitted the deposition testimony of Stuart Gold, the principal of SDG, who describedGoldstein's underpinning detail as "generic" and "boilerplate," and acknowledged that,with the limited exception of determining the depth and location of the basement andfoundation of the new building, SDG did not rely upon Goldstein's drawings inconnection with the underpinning. Such proof sufficiently demonstrated, prima facie,that ILA and Goldstein, in the performance of their contractual obligations, did notlaunch a force or instrument of harm by creating or exacerbating a dangerous condition(see Espinal v Melville Snow Contrs., 98 NY2d at 139-142; Mathey v Metropolitan Transp.Auth., 95 AD3d 842, 844 [2012]; Martin v Huang, 85 AD3d 1132, 1133 [2011]; Davies v Ferentini, 79 AD3d528, 530 [2010]). In opposition, the plaintiffs and SDG failed to raise a triable issueof fact as to whether ILA or Goldstein owed a duty of care or assumed such a duty. Tothe extent ILA reviewed SDG's drawings, there is no evidence that this review made theunderpinning less safe than it was beforehand (see Stiver v Good & Fair Carting &Moving, Inc., 9 NY3d at 257; Fecht v City of New York, 244 AD2d 315,315-316 [1997]).
The Supreme Court also should have granted those branches of Domani's motionwhich were for summary judgment dismissing the complaint and all cross claims insofaras asserted against it in action No. 1. In support of its motion, Domani tendered proofdemonstrating that any allegedly negligent work it performed was not a proximate causeof the plaintiffs' injuries (seeLisi v Coco, 31 AD3d 615, 616 [2006]; Mohammed v Islip Food Corp., 24 AD3d 634, 637[2005]). In opposition, the plaintiffs failed to raise a triable issue of fact.
Contrary to SSI's contention, the Supreme Court properly granted those branches ofCSI's motion which were for summary judgment dismissing SSI's cross claims against itfor indemnification and contribution in action Nos. 1 and 3. CSI demonstrated, primafacie, that the work it performed did not cause or contribute to the happening of theaccident (see Lisi v Coco, 31 AD3d at 616; Mohammed v Islip FoodCorp., 24 AD3d at 637). SSI's contention that the affidavit of CSI's expert should nothave been considered because of CSI's failure to timely disclose the identity of the expertis not properly before this Court, as the contention is raised for the first time on appeal(see Kung v Zheng, 73AD3d 862, 863 [2010]). In opposition, SSI failed to raise a triable issue of fact.[*4]
The Supreme Court properly denied thosebranches of Midtown's motion which were for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it in action No. 1. In oppositionto Midtown's prima facie showing that it did not owe any duty to the plaintiffs, theevidence submitted in opposition to the motion raised a triable issue of fact as to whetherMidtown, which had "an ownership interest" in 506 Kings, exerted sufficient controlover the project so as to subject it to strict liability pursuant to former AdministrativeCode of the City of New York § 27-1031 (b) (1), which provides that the "personwho causes" an excavation that is carried to a depth of more than 10 feet below thelegally established curb level preserve and protect from injury any adjoining structures athis or her own expense (seeYenem Corp. v 281 Broadway Holdings, 18 NY3d 481, 486 [2012];Coronet Props. Co. v L/M Second Ave., 166 AD2d 242, 243 [1990]).
The parties' remaining contentions are either without merit or not properly before thisCourt. Mastro, J.P., Rivera, Dickerson and Lott, JJ., concur.