Opinion
INDEX NO. 651426/2013
06-03-2019
BOARD OF MANAGERS OF 141 FIFTH AVENUE CONDOMINIUM, Plaintiff, v. 141 ACQUISITION ASSOCIATES LLC,141 FIFTH AVENUE PARTNERS LLC,141 FIFTH AVENUE MANAGER LLC,SAVANNA 141 PRINCIPALS LLC,CIF 141 FIFTH LLC,J CONSTRUCTION COMPANY LLC,CHRISTOPHER SCHLANK, NICHOLAS BIENSTOCK, CETRA/RUDDY INCORPORATED, ALFRED KARMAN, FRANK SETA & ASSOCIATES LLC, Defendant.
NYSCEF DOC. NO. 807 MOTION DATE N/A, N/A MOTION SEQ. NO. 010 011
DECISION AND ORDER
HON. SALIANN SCARPULLA: The following e-filed documents, listed by NYSCEF document number (Motion 010) 487, 488, 489, 490, 491, 492, 493, 510, 512, 513, 514, 515, 533, 534, 535, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 564 were read on this motion to/for DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 011) 495, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 511, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 571, 572, 573, 574, 575 were read on this motion to/for DISMISSAL. Motion sequence numbers 010 and 011 are consolidated for disposition.
Plaintiff Board of Managers of 141 Fifth Avenue Condominium ("Board of Managers") brought this action to recover damages for alleged design and construction defects in connection with the renovation and conversion of a building located at 141 Fifth Avenue, New York, New York ("Building") into a residential condominium ("Project"). Among the defendants named were 141 Acquisition Associates, LLC, the Project's sponsor (the "Sponsor"), the sponsor's affiliates and principals, and various construction and design professionals, including defendant and third-party plaintiff J Construction Company LLC ("J Construction"), the Project's construction manager and general contractor. J Construction, in turn, commenced third-party actions, including the sixth third-party action against, inter alia, third-party defendants GACE Consulting Engineers, D.P.C. f/k/a Goldstein Associates, PLLC ("GACE") and MG Engineering D.P.C. d/b/a MGJ Associates Inc. ("MG"). The amended sixth third-party complaint ("Sixth TPC"), filed in August 2017, asserts twenty eight causes of action. GACE and MG now move (in motion sequence numbers 010 and 011, respectively), pursuant to CPLR 3211 (a) (1), (5) and (7), to dismiss the professional negligence, common law indemnification and contribution causes of action asserted against them in the Sixth TPC.
The underlying facts of this case were stated in detail in decisions dated July 17, 2015 and October 15, 2015 ("Decisions"). Therefore, I only include facts not previously discussed in the Decisions. Background
On August 17, 2005, Sponsor and/or its affiliates and principals entered into a Structural Engineering Agreement with GACE to design the structural systems for the Building. On August 19, 2005, Sponsor and/or its affiliates and principals entered into a Mechanical Electrical Engineering Agreement with MG to design the mechanical, electrical and plumbing systems for the Building. In July 2007, Sponsor and J Construction entered the construction management agreement ("CMA") and J Construction took over as the new construction manager for the Project. Its duties included the hiring of subcontractors and materialmen to perform the work described in the CMA.
In pertinent part, the Sixth TPC states as follows concerning GACE:
"In connection with its responsibilities as the structural engineer for the Project, [GACE] owed a duty based upon privity or the functional equivalent thereof, to J Con[struction] to perform its bid preparation, bid review, report preparation, building inspection,
supervision of the Work, responses to requests for information in a manner consistent with the standard of care for licensed professionals including but not limited to licensed engineers.The Sixth TPC makes identical allegations concerning MG, "[i]n connection with its responsibilities as the mechanical, electrical and plumbing systems engineer for the Project."
". . . [GACE] breached its professional duty of care, owed to J Con[struction] based upon privity to J Con[struction] or the functional equivalent of privity, by failing to properly perform to the standard of care of such professionals."
The Sixth TPC also incorporates by reference Board of Manager's amended complaint and Sponsor's answer to amended complaint, amended cross claims and third-party complaint ("Sponsor's Pleading"). In pertinent part, Board of Manager's amended complaint alleges that the Building's residents "began to discover significant design and construction defects and problems with the Building, and, in particular, extensive water infiltration and damage, electrical wiring, heating and plumbing defects in design and construction[,]" and that
"Defendant J Construction breached its contractual obligations to Plaintiff and its Unit holders in that, among other things, J Construction did not perform or cause to be performed all Work in a good and workmanlike manner, did not build in accordance with the Plans and Specifications, the Building has suffered and continues to suffer from design and construction defects . . . ."In addition, Board of Managers alleges that, in 2011, it began to retain professionals to ascertain and remedy the various problems with the Building and that, as of the date of the amended complaint, "work remain[ed] ongoing."
Sponsor's Pleading states, in pertinent part, that "Sponsor relied at all times on the expertise of the design and construction professionals it hired, including CRI, JAC, J Construction, Karman, and Seta, in connection with the Project[,]" each of whom "was responsible for some aspect of the design and construction work involved in the facade restoration project." In addition, Sponsor alleges that "[p]ursuant to the CMA, J Construction was responsible, along with Karman, for evaluating and retaining appropriate subcontractors to perform the work on the facade restoration project, as well as for supervising such subcontractors in their work." Sponsor seeks common law indemnity and contractual indemnity under the CMA, which obligates J Construction "to indemnify Sponsor and hold it harmless, and defend it, from all losses, damages, claims, and injuries, including attorney's fees, arising out of or relating to the construction of the Building or J Construction's performance under the CMA."
Pursuant to a stipulation of discontinuance, dated May 23, 2017, Board of Managers settled and voluntarily discontinued its claims against Sponsor. As part of the settlement, Sponsor assigned its claims to Board of Managers.
In support of GACE's motion to dismiss, Alice Chan ("Chan"), GACE's office administrator, submits an affidavit in which she attaches "GACE's proposal agreements to Savanna Partner, Cook + Fox Architects and SL Green Realty Corp. for engineering services in connection with the [Building]," and states that GACE "did not . . . enter into an agreement with any other person or entity in connection with the [Building]." In addition, Chan states that GACE completed its work on the Project in 2010 and that GACE completed all work in the Building, which consisted of additional work for a tenant on the second floor, by July 15, 2010. Chan submits copies of GACE's invoices, including one dated July 15, 2010, which she attests was the last invoice with no work completed thereafter.
In support of its motion to dismiss, MG submits the affidavit of its principal, Bruce W. Jaffe ("Jaffe"), who states that MG was retained by Savanna Partners to perform mechanical engineering work in connection with the Project, pursuant to a contract dated August 19, 2005, and that "the last services performed on the Project were completed in January 2012." Annexed to his affidavit is the contract and the invoice dated January 31, 2012, which, according to Jaffe, "was the final invoice MG[] submitted to Savanna for services provided at the Project."
Based upon these documents and affidavits, GACE and MG argue that J Construction's professional negligence claims against them are time-barred, and that the indemnification/contribution claims are insufficient as a matter of law. Discussion A. Professional Negligence
On a motion to dismiss a claim pursuant to CPLR 3211 (a) (5), the defendant bears the "initial burden of establishing, prima facie, that the time in which to sue has expired." New York City Sch. Constr. Auth. v Ennead Architects LLP, 148 AD3d 618, 618 (1st Dept 2017) (internal quotation marks and citation omitted). "[T]he three-year limitation of CPLR 214 (6) controls in a negligence action against a professional, such as an architect or engineer." IFD Constr. Corp. v Corddry Carpenter Dietz & Zack, 253 AD2d 89, 91-92 (1st Dept 1999). The claim "accrues when the professional relationship ends, usually upon issuance of the final payment certificate under the contract." Id. at 92; see also New York City Sch. Constr. Auth., 148 AD3d at 618. "If the action is commenced after the statute of limitations expires, a plaintiff may be able to avoid dismissal by asserting that the statute of limitations is tolled by the continuous representation doctrine, or at least showing that there is an issue of fact as to its application[.]" Sendar Dev. Co., LLC v CMA Design Studio P.C., 68 AD3d 500, 503 (1st Dept 2009). The doctrine of continuous representation "applies when a plaintiff shows that he or she relied upon an uninterrupted course of services related to the particular duty breached." Id.
Here, both GACE and MG demonstrate, prima facie, that the professional negligence claims against them are barred by the three-year statute of limitations. GACE presents the affidavit of its office administrator, who provides a copy of an invoice, dated July 15, 2010, stating that it was the final invoice and that GACE completed all work on the Project in 2010. MG's principal, also annexes a copy of an invoice, dated January 31, 2012, to his affidavit and states that it "was the final invoice . . . for services provided at the Project." This evidence shows that they completed all work on the Project more than three years before J Construction commenced the instant third-party action in August 2017. See e.g. Booth v Kriegel, 36 AD3d 312, 314 (1st Dept 2006) (dismissing professional negligence claim as time-barred where the defendant accountant submitted an affidavit attesting that he had completed all work relating to the claim more than three years before the plaintiff filed her complaint); see also Sendar Dev. Co., LLC v CMA Design Studio P.C., 68 AD3d 500, 503 (1st Dept 2009) (dismissing complaint against engineer as time-barred based on "documentary evidence that he completed his work," consisting of, among other things, a "final invoice for his services"); Sparacino v Winner, 82 AD2d 753, 753 (1st Dept 1981) (dismissing complaint pursuant to CPLR 3211 [a] [5], based on the defendant physician's affidavit stating when he completed plaintiff's treatment).
In opposition, J Construction fails to raise a question of fact as to whether the statute of limitations for professional negligence was tolled or is otherwise inapplicable. It simply argues that, in light of Board of Manager's allegation that, as of 2014, work on the Building was ongoing, discovery may reveal that GACE and MG continued to provide services beyond the dates of their purported final invoices. J Construction's unsupported surmise is insufficient to defeat the motions to dismiss, as there is no indication that GACE or MG were part of such work. "If the statute is to be avoided, there should be some factual demonstration in the answering papers." Sparacino, 82 AD2d at 753 (rejecting plaintiff's contention that dismissal on statute of limitations grounds was premature).
To the extent J Construction claims that discovery may reveal grounds to toll the statute of limitations under the application of the continuous treatment doctrine, it overlooks that "an argument of continuous treatment based on evidence newly discovered . . . is inconsistent with the requisite showing of reliance upon the continued services related to the particular duty breached." 860 Fifth Ave. Corp. v Superstructures-Engrs. & Architects, 15 AD3d213, 214 (1st Dept 2005); see also Cracolici, 127 AD3d 413 (1st Dept 2015) ("The mere hope that discovery may reveal a course of continuous treatment . . . does not warrant denial of the motion").
Accordingly, the professional negligence claims against GACE and MG are dismissed as time-barred. Because I dismiss the claim as time-barred, I do not address GACE's and MG's independent ground for dismissal for failure to plead facts sufficient to state functional privity. B. Common Law Indemnification and Contribution
"[T]he predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, [therefore,] it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine." Trustees of Columbia Univ. v Mitchell/Giurgola Assoc., 109 AD2d 449, 453 (1st Dept 1985). "Thus, to be entitled to indemnification, the owner or contractor seeking indemnity must have delegated exclusive responsibility for the duties giving rise to the loss to the party from whom indemnification is sought." 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 (1st Dept 1999).
Here, neither the amended complaint nor Sponsor's Pleading seeks to hold J Construction liable for the wrongs of another. Rather, these pleadings allege that J Construction breached its own obligations under the CMA. Nor does J Construction allege that it "delegated exclusive responsibility for the duties giving rise to the loss to [GACE or MG]." 17 Vista Fee Assoc., 259 AD2d at 80.
"Thus, liability against [J Construction] would be based upon [its] own participation in the acts giving rise to the loss, that is, as an actual wrongdoer, and, alternatively, if [it] did perform its duties properly by exercising due care and skill in the performance of its work thereby fulfilling its obligations to plaintiff, [J Construction] would be free from liability irrespective of whether [a third-party defendant is responsible for plaintiff's damages]."Trustees of Columbia Univ., 109 AD2d at 453-454; see also Richards Plumbing & Heating Co., Inc., 59 AD3d 311, 312 (1st Dept 2009) (affirming dismissal of a construction manager's third-party action for common-law indemnification against the architect, "since plaintiff's claims and the owner's cross claims allege[d] breach of contract by the construction manager, not vicarious liability attributed solely to the fault of the architect"); SSDW Co. v Feldman-Misthopoulos Assoc., 151 AD2d 293, 296 (1st Dept 1989) (dismissing an architect's indemnification claim against third-party defendants, where the architect was not "to be held vicariously responsible for defects in materials supplied by the third-party defendants, but [was] directly charged with causing those defects"). Therefore, J Construction's claims for indemnification against MG and GACE must be dismissed.
Nor does J Construction have a viable contribution claim against MG or GACE. J Construction faces no tort based claims, and "in the absence of tort liability, contribution is unavailable." Rockefeller Univ. v Tishman Constr. Corp. of N.Y., 240 AD2d 341, 343 (1st Dept 1997). Therefore, J Construction's cross claims for contribution must be dismissed.
In accordance with the foregoing, it is hereby
ORDERED that the motions of third-party defendants GACE Consulting Engineers, D.P.C. f/k/a Goldstein Associates, PLLC (motion sequence number 010) and MG Engineering D.P.C. d/b/a MGJ Associates Inc. (motion sequence number 011), to dismiss the amended sixth third-party complaint against them is granted and the amended sixth third party complaint is severed and dismissed in its entirety as against these third-party defendants, with costs and disbursements as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the remainder of the sixth third-party action is severed and continued against the remaining third-party defendants. 6/3/19
DATE
/s/ _________
SALIANN SCARPULLA, J.S.C.