Opinion
Index Nos. 56658/2019 60533/2019 53190/2021 70674/2019 56568/2020 Motion Sequence Nos. 13 Action Nos. 2 3 4 5
06-14-2021
AMERICAN CONCRETE PUMPING, INC., Plaintiff, v. ARMANDO HOMEM, ALDINA HOMEM, HUDSON EFT LLC, MATTHEW A. NOVIELLO, PE and VILLAGE OF OSSINING, Defendants. HUDSON EFT LLC, Third-Party Plaintiff, v. GAC BUILDERS LTD. and SHAWN'S LAWNS, INC., Third-Party Defendants. GAC BUILDERS LTD., Second Third-Party Plaintiff, v. AMAZON CONCRETE INC. and SESI CONSULTING ENGINEERS, PC, Second Third-Party Defendants. GAC BUILDERS LTD., Third Third-Party Plaintiff, v. BROOKER ENGINEERING, PLLC, Third Third-Party Defendant. PROGRESSIVE CASUALTY INSURANCE COMPANY a/s/o AMERICAN CONCRETE PUMPING, INC., Plaintiff, v. ARMANDO HOMEM, ALDINA HOMEM, HUDSON EFT, LLC, MATTHEW A. NOVIELLO, PE and VILLAGE OF OSSINING, Defendants. DAIN BAIRD-ROGERS, Plaintiff, v. HUDSON EFT LLC and AZIMUTH DEVELOPMENT GROUP, LLC, Defendants. ARMANDO HOMEM and ALDINA HOMEM, Plaintiffs, v. HUDSON EFT, LLC, Defendant. CONTINENTAL WESTERN INSURANCE COMPANY a/s/o ARMANDO HOMEM and ALDINA HOMEM, Plaintiff, v. HUDSON EFT, LLC and GAC BUILDERS LTD., Defendants.
Unpublished Opinion
DECISION & ORDER
HON. JOAN B. LEFKOWITZ, J.S.C.
The following papers (NYSCEF document nos. 371-373; 385-387; 409-432; 434-436; 444-445) were read on the motion by the defendant, Matthew A. Noviello, P.E., for an order dismissing the complaint insofar as asserts a cause of action against him pursuant to CPLR 3211 (a) (1), (a) (7), CPLR 3211 (c), and CPLR 3211 (h).
Motion Sequence No. 13
Notice of Motion-Exhibits (A-B)-Amended Affirmation-Exhibits (C-D)
Affirmation in Opposition (by third-party defendant, Shawn's Lawns, Inc.)-Exhibit (A)
Affirmation in Opposition (by plaintiff)-Exhibits (1-7)
Affirmation in Opposition (by third third-party defendant, Brooker Engineering, PLLC)-Exhibits (A-C)-Memorandum of Law
Affirmation in Response (by defendants, Armando Homem and Aldina Homem)
Affirmation in Opposition (by second third-party defendant, SESI Consulting Engineers)
Affirmation in Opposition (by defendant, Hudson EFT LLC)-Exhibit (1)
Affirmation in Opposition (by third-party defendant, GAC Builders LTD)-Exhibits (A-B)
Affirmation in Opposition (by second third-party defendant, Amazon Concrete Inc.)-Exhibit (A)
Reply Affidavit by Noviello to Shawn's Lawns' Opposition-Exhibit (AA)
Reply Affidavit by Noviello to GAC Builders LTD's Opposition-Exhibit (BA)
Upon reading the foregoing papers, it is
ORDERED the motion is denied.
This matter arises out of the collapse of a retaining wall located at 60 Main Street, Ossining, New York (Premises). As relevant herein, Armando and Aldina Homem owned the Premises. Movant-defendant herein, Matthew Noviello, P.E., a licensed engineer, was hired to design the retaining wall on the Premises. American Concrete Pumping Inc. owned and operated a concrete business from the Premises. It is alleged that American Concrete also provided concrete-related services to construct the retaining wall. Hudson EFT owns the adjacent property located at 80 Main Street, Ossining, New York (Site). Hudson EFT hired GAC Builders Ltd. to construct a 25-unit apartment building upon its parcel. The retaining wall was installed on the Homem Premises due to a significant elevation differential between the Homem Premises and the Hudson EFT Site. On or around August 13, 2018, the retaining wall collapsed prompting the instant litigation.
Defendant, Matthew A. Noviello (Noviello), P.E., now moves pursuant to CPLR 3211 (a) (1), (a) (7), CPLR 3211 (c) and CPLR 3211 (h) for an order dismissing the complaint insofar as asserts a cause of action against him. For the reasons that follow, the motion is denied.
CPLR 3211 (a) (1)This branch of the motion by Noviello to dismiss the complaint insofar as asserts a cause of action against him based upon documentary evidence pursuant to CPLR 3211 (a) (1) is denied.
Inasmuch as Noviello failed to raise this defense founded upon documentary evidence as one of the eleven asserted affirmative defenses raised in his answer, and the motion was not otherwise made before the answer was due (see CPLR 3211 [e]), Noviello waived his right to move pursuant to CPLR 3211 (a) (1) (see Margolin v I M Kapco, Inc., 89 A.D.3d 690, 691 [2d Dept 2011]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 A.D.3d 239, 241-242 [2d Dept 2007]).
CPLR 3211 (a) (7)This branch of the motion by Noviello to dismiss the complaint insofar as asserts a cause of action against him based upon a failure to state a cause of action pursuant to CPLR 3211 (a) (7) is denied.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court is to afford the pleading a liberal construction, accept the alleged facts as true, afford the plaintiff the benefit of every possible favorable inference, and simply determine whether the alleged facts fit within any cognizable legal theory (see CPLR 3026; Sarva v Self Help Community Servs., Inc., 73 A.D.3d 1155, 1155-56 [2d Dept 2010]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss [pursuant to CPLR 3211]" (EBC I, Inc. v Goldman, Sachs & Co., 5 N.Y.3d 11, 19 [2005]).
Here, accepting the alleged facts as true, and affording the plaintiff the benefit of every possible favorable inference, the amended complaint states a cause of action for negligence against Noviello.
CPLR 3211 (c)This branch of the motion by Noviello for summary dismissal of the complaint insofar as asserts a cause of action against him pursuant to CPLR 3211 (c) is denied.
Inasmuch as discovery remains ongoing, and it appears that no parties have yet been deposed, the court finds that it is premature to treat Noviello's motion as one for summary judgment pursuant to CPLR 3211 (c). The papers submitted in opposition to the motion make it clear that the parties were not "deliberately charting a summary judgment course" (Mihlovan v Grozavu, 72 N.Y.2d 506, 508 [1988] [internal quotation marks omitted]; see Jones v Rochdale Vil., Inc., 96 A.D.3d 1014, 1016 [2d Dept 2012]; cf. O'Dette v Guzzardi, 204 A.D.2d 291, 292 [2d Dept 1994]).
CPLR 3211 (h)This branch of the motion by Noviello to dismiss the complaint insofar as asserts a cause of action against him pursuant to CPLR 3211 (h) is denied.
A motion to dismiss an action pursuant to CPLR 3211 (h) arising under CPLR 214-d "shall be granted unless the party responding to the motion demonstrates that a substantial basis in law exists to believe that the performance, conduct or omission complained of such licensed . . . engineer . . . was negligent and . . . a proximate cause of personal injury . . . complained of by the claimant" (CPLR 3211 [h]). "CPLR 3211(h) this imposes a heightened standard of review" (Golby v N & P Engrs. & Land Surveyor, PLLC, 185 A.D.3d 792, 793 [2d Dept 2020]). "A court reviewing the sufficiency of a complaint under CPLR 3211(h) must determine whether the claim alleged is supported by such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Schmitt v Spector, 129 A.D.3d 1052, 1053 [2d Dept 2015] [internal quotation marks, brackets, and ellipses omitted]). The party opposing a CPLR 3211(h) motion "must adduce allegations and evidence that demonstrate the existence of triable issues of fact regarding the [engineer's] negligence and proximate cause" (Golby, 185 A.D.3d at 794).
In opposition to this branch of the motion by Noviello to dismiss the complaint insofar as asserts a cause of action against him pursuant to CPLR 3211 (h), the heightened standard imposed by CPLR 3211 (h) was met with relevant proof including, among other things, the expert engineer affidavits proffered by the third-party defendants, Shawn's Lawn's Inc. and GAC Builders LTD, which raised triable issues of fact as to Noviello's alleged negligence and proximate cause thereof which the court finds is not suitable for determination at this stage of the litigation (see Golby, 185 A.D.3d at 794; Schmitt, 129 A.D.3d at 1053; Castle Vil. Owners Corp. v Greater N.Y. Mut. Ins. Co., 58 A.D.3d 178, 184 [1st Dept 2008]).
This matter is presently scheduled for a compliance conference on June 14, 2021, at 12:00 p.m. which shall be conducted virtually via Microsoft Teams.