Opinion
668/04.
Decided on January 10, 2007.
Plaintiff Attorney: Zetlin DeChiara, LLP, New York.
Defendant (Park Slope Condo) Attorney: J. Papapanayotou, New York.
Defendant (Van Brody Assoc.) Attorney: Milber Makris Plousadis Seiden, L.L.P., New York.
Upon the foregoing papers, defendant Van Brody Architects (Van Brody) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint of plaintiff RCD Building L.L.C. (RCD) and the indemnification/contribution cross claim of defendant Tucci Equipment Corp. (Tucci), or, alternatively, granting its own common law indemnification cross claim against Tucci and the other codefendants, Park Slope Condominiums, L.L.C. (Park Slope), Cambridge Construction Corp. (Cambridge), Joseph Dabbah (Dabbah) and William Ruggerio (Ruggerio).
Background
This case stems from the alleged structural damage to RCD's four-story, residential condominium building at 251 8th Street in Brooklyn. That damage allegedly resulted from subcontractor Tucci's May 11, 2003 underpinning operations for Park Slope's adjacent building of eight residential condominium units being constructed by general contractor Cambridge at 247-249 8th Street.
Van Brody had made a written agreement with Dabbah, on behalf of Park Slope, to provide architectural services in connection with Cambridge's construction. The structural drawing containing the underpinning design details, described in the specification notes as "suggestions only," limited each underpinning "cut" to no more than four feet wide. The notes, which declared the contractor "solely responsible for the safety of all existing property and persons during underpinning operations," provided for "[t]he contractor . . . to propose and submit his own underpinning details" through a professional engineer and further stated that "[a]ll underpinning work shall be supervised by the contractor's engineer."
More specifically, the agreement required Van Brody to provide structural, mechanical and electrical designs, to prepare drawings and construction design details for the New York City Department of Buildings, to make filings with the Attorney General's Office and to generate tax lot drawings for the City Surveyor.
More specifically, the note to Detail #4 of structural drawings SF1 and S1 pertinently provides that "]t]he contractor shall retain the services of a professional engineer, registered in the State of New York, to prepare signed and sealed design drawings and calculations for all required underpinning of adjacent structures."
Van Brody filed the architectural plans with the Department of Buildings (DOB) and signed its Technical Report: Statement of Responsibility Form (a "TR-1 Report") obligating it or qualified personnel it supervised to perform required inspections and thereby enabling issuance of a work permit. However, Tucci commenced underpinning operations on May 11, 2003 before Cambridge had even hired a structural engineer and without giving Van Brody written notice of such work as required by New York City Administrative Code § 27-195.
More specifically, the "Identification of Responsibilities" section of the report pertinently states that "I personally, or where permitted by The Building Code, qualified personnel under my direct supervision, will perform the required inspections and tests; all inspections and test reports shall be signed and filed with the Department."
That provision pertinently provides that "[b]efore any work is commenced on an item of construction requiring controlled inspection, all persons responsible for such controlled inspections shall be notified in writing at least seventy-two hours prior to such commencement."
Van Brody, though, went to the work site that day after having received a call from an owner of RCD's building, who alleged that settling was occurring to the exterior of the RCD building. Van Brody discovered two underpinning openings approximately eight feet in length and called a structural engineer, Jay Ming Wang, P.E., a design professional familiar with underpinning designs, who then spoke with Tucci's representative. Mr. Wang advised Tucci's representative to wedge or shorten the spans of the excavation cuts. A Department of Buildings violation, dated May 12, 2003, the day after Tucci's underpinning operation, noted that "approved plans dated 4/21/03 indicate underpinning work must be done in a 4' wide section. Now underpinning work . . . being done in sections approx. 10', 7' and 6' wide at once."
Cambridge's engineer, Gregory Georges, P.E., retained after Tucci's underpinning operation on May 11, 2003, subsequently executed a second TR-1 report, dated July 21, 2003, designating him as then responsible for controlled inspections on the above project. This litigation thereafter ensued.
RCD's complaint contains two causes of action against Van Brody: the second cause of action for an alleged breach of Van Brody's duty to protect RCD's property through controlled inspection of the underpinning work and the fourth cause of action against all defendants including Van Brody for an alleged trespass on RCD's property by excavating the soil beneath RCD's property. Tucci, in turn, has asserted an indemnification/contribution cross claim against all codefendants including Van Brody.
The Parties' Positions
Van Brody's Position
Van Brody asserts that it owed no duty of care to RCD regarding the underpinning operations contractually undertaken by others. It sees no proof of deficiency regarding the "typical underpinning detail" in its structural S-1 drawing and no proof that it actively performed or supervised the excavation, foundation or underpinning work. The absence of such negligence, Van Brody further submits, means it committed no negligence that proximately caused damages to RCD's building.
New York statutory and common law in Van Brody's view also fail to make it liable to RCD solely for its filing plans with the Department of Buildings. Instead, Van Brody contends that only the adjacent landowner (Park Slope) and contractors actually performing the excavation work (Cambridge, Mr. Ruggerio, a Cambridge owner, and Tucci) bear liability for damages from loss of lateral support due to excavation and/or underpinning work on adjacent property.
Van Brody stresses that Cambridge bore responsibility to hire a licensed engineer to perform controlled inspections, contends that such engineer would replace it as the accountable party on the TR-1 form and thus describes itself as merely a DOB "place holder" prior to that engineer's retention. The absence of the 72 hour written notice (under Administrative Code § 27-195) before the excavation work began, Van Brody additionally asserts, nullifies its obligation in any event to perform a controlled inspection.
Van Brody also urges dismissal of plaintiff's trespass cause of action for lack of proof that it physically entered plaintiff's adjoining property. Alternatively, Van Brody views itself as playing a passive role in causing any damages to RCD's building and therefore regards common law indemnification against the codefendants as appropriate for its allegedly vicarious liability.
RCD's Position
RCD claims that Van Brody played a significant role in the underpinning on the project herein. It cites various codefendants as allegedly acknowledging Van Brody's input in recognizing the need for underpinning and then claiming that Van Brody observed the underpinning work during various stages of the process. RCD also references Van Brody's own deposition testimony as showing that Van Brody provided guidance through its own engineer to wedge or shorten the spans of the excavation cuts upon discovering the underpinning problem.
In addition, RCD views Van Brody as accountable for conducting controlled inspections by virtue of its TR-1 report. It claims that Van Brody's notification letters to neighbors, sent on or about April 17, 2003, alerting them to the commencement of construction establishes Van Brody's notice of the excavation work. These factors, taken collectively, RCD argues, raise triable factual issues about Van Brody's involvement and potential negligence regarding the underpinning operation and preclude summary judgment.
Codefendants' Position
Park Slope, Cambridge, Dabbah, Ruggiero and Tucci, collectively, echo RCD's position, emphasize that Van Brody's TR-1 report made it legally responsible for the supervision and/or observation of the construction, specifically including "underpinning work" and that Van Bordy's letter agreement with Dabbah, for Park Slope, separately provided for "construction observation" and for "compliance with the intent of the drawings and specification and Codes." Codefendants further contend that Van Brody's affirmative failure to properly supervise negates its common law indemnity claim.
Discussion
(a)
The Appellate Division, Second Department relatively recently reiterated the rule that "to be entitled to summary judgment dismissing the complaint [a] defendant [is] required to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case . . . Even if such a showing is made, the motion must be denied if the plaintiff "produce[s] evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he [or she] rests his [or her] claim" ( Caprer v Nussbaum, ___ AD3d ___, 2006 NY Slip Op 07443 at *14 [2006] [internal citations and internal quotation marks omitted]).
(b)
Here, Van Brody has made a prima facie showing through the deposition testimony of the other codefendants that it had failed to receive the requisite 72 hour written notice of the underpinning operation on May 11, 2003. Such showing shifted the burden to RCD and the codefendants to present such notice or raise a triable factual issue about the notice.
Referencing the five day notice of excavation provided to neighboring landowners pursuant to Administrative Code § 27-165 fails to suffice. That notice, though originating from Van Brody, states only that Cambridge will commence "excavation," makes no mention of underpinning nor establishes that Van Brody knew when underpinning would occur. Administrative Code § 27-195 requires the 72 hour written notice to Van Brody "before any work is commenced on an item of construction requiring controlled inspection. . ." (emphasis added). Underpinning, not excavation generally, requires a controlled inspection (as stated in Administrative Code § 27-724).
That provision provides that "[n]o foundation or earthwork permit shall be issued unless and until at least five days prior written notice of the permit application shall have been given by the applicant to the owners of all adjoining lots, buildings and service facilities which may be affected by the proposed foundation work or earthwork operations."
That provision pertinently provides that "[e]xcept in cases where a proposed excavation will extend less than ten feet below the legally established grade [inapplicable herein], all underpinning operations . . . or other construction or excavation required for or affecting the support of adjacent properties or buildings shall be subject to controlled inspections."
In addition, the then Building Commissioner's supporting memorandum regarding the 72 hour written notice in Administrative Code § 27-195 explains that "[i]t is important that the registered architect or licensed professional engineer responsible for controlled inspections of a construction operation be alerted when work on that specific operation is to be commenced, so as to assure his presence at the jobsite when the controlled inspection should be performed" (Building Commissioner Joseph Stein's Mem in Support, Bill Jacket, Local Law 77 of 1972, Council Intro. No. 846 [emphasis added]). Consequently, the controlled inspection requirement related to the underpinning required a 72 hour written notice to Van Brody before May 11, 2003 about such underpinning, and the notice of excavation sent to neighboring landowners on April 17, 2003 fails to fulfill the underpinning notice requirement. The notice given under Administrative Code § 27-165 in other words fails to impute the requisite underpinning notice to Van Brody mandated under Administrative Code § 27-195.
(c)
The deposition testimony of Tucci's former owner, Ralph Martucci also fails to show Van Brody's awareness of the underpinning operation. Indeed, when asked "did he [the architect] ever come over and view the underpinning work that you were doing," Mr. Martucci equivocally responded, "He would view the whole site. I don't know if it was particularly the underpinning. He would just view the whole site. I never got in conversation in detail with the architect and Cambridge together."
Such speculative testimony fails to viably raise a triable factual issue about Van Brody's knowledge of the underpinning that has spawned this action. "[A] motion for summary judgment may not be defeated by a response based on surmise, conjecture and suspicion" ( Rendon v Castle Realty, 28 AD3d 532, 533 [internal citations and internal quotation marks omitted]). The failure to show compliance with the 72 hour written notice requirement in Administrative Code § 27-195 or Van Bordy's awareness of the actual underpinning operation therefore prevents making Van Brody liable for failing to perform a controlled inspection.
This conclusion, in turn, moots resolving Van Brody's argument contesting responsibility for performing a controlled inspection for underpinning by having signed the DOB Technical Report Statement of Responsibility (i.e., the TR-1 Report).
(d)
Efforts to create a separate factual question about Van Brody's alleged negligence resulting from his appearance at the jobsite on May 11, 2003 and the repair instructions concerning wedging provided by his engineer to Tucci's representative also lack merit. Such approach requires showing a deficiency regarding those instructions which, in turn, requires an expert's affidavit that the opposition papers lack. "[F]ailure to offer an expert affidavit was fatal to [the] malpractice claim against the architect" ( Sheehan v Pantelidis, 6 AD3d 251, 251 [internal citation omitted]).
Liability also fails to arise when Van Brody identified the possible need for underpinning and presented "suggested" underpinning drawings considering the absence of an expert's affidavit challenging the need for underpinning or the viability of those drawings. "It is well settled that in order to prove negligence or malpractice in the design of a structure, the plaintiff must put forth expert testimony that the engineer or architect deviated from accepted industry standards" ( Columbus v Smith Mahoney P.C., 259 AD2d 857, 858).
(e)
Equating Van Brody's recognition of the need for underpinning and its suggested plans and drawings for proper underpinning with allegedly negligent underpinning operations also provides no basis for recovery against Van Brody. Administrative Code § 27-1031 (b) (1) in fact places responsibility for the safety of adjoining structures on "the person who causes such excavation to be made." "The duty under the statute is intended to apply to the activities during the excavation process and to any damages suffered by the adjoining owner proximately resulting from the excavator's failure to take adequate precautions to protect adjoining structures during the excavation" ( Cohen v Lesbian Gay Community Services Center, Inc., 20 AD3d 309, 310 [emphasis added]).
More specifically, the provision provides that "[w]hen an excavation is carried to a depth of more than ten feet below the legally established curb level the person who causes such excavation to be made shall, at all times and at his or her own expense, preserve and protect from injury any adjoining structures, the safety of which may be affected by such part of the excavation that exceeds ten feet below the legally established curb level provided such person is afforded a license to enter and inspect the adjoining buildings and property."
The Appellate Division, Second Department long ago eliminated a defendant's liability where "[t]here was no proof that [this] defendant . . . participated in or knew of the damage that was being done by the other defendants who were excavating . . ." ( Hoffman v Dyruff, 259 App Div 837, 838, affd 285 NY 695). Here, too, no proof shows that Van Brody knew about the actual underpinning being done.
Indeed, plaintiff's complaint highlights Van Brody's purported negligence regarding its alleged failure to inspect, not concerning its design or performance of the underpinning. The DOB's May 12, 2003 violation in this regard references the "approved plans" for underpinning work in a four foot wide section while concurrently reporting the discovery, on the other hand, that the underpinning work occurred with "sections approx. 10', 7' and 6' wide at once" ( see Merritt v Hooshang Const. Inc., 216 AD2d 542, 543 [no liability against firm presenting architectural plans where allegations concern deviation from plans]). Hence, Van Brody's tenuous relationship to the actual underpinning operations fails to make it liable to RCD under the complaint's second cause of action.
(f)
The Court of Appeals has explained regarding common-law trespass, RCD's fourth cause of action, that "the trespasser . . . to be liable . . . must intend the act which amounts to or produces the unlawful invasion" ( Ivancic v Olmstead, 66 NY2d 349, 352, rearg denied 66 NY2d 1036, rearg denied 67 NY2d 764, cert denied 476 US 1117 quoting Phillips v Sun Oil Co., 307 NY 328, 331). Thus, "trespass . . . rerquire[s] a physical entry ( Feder v Village of Monroe, 283 AD2d 548, 549). However, "[w]hile physical entry by the trespasser upon another's land is not necessary, the trespasser must have at least caused or directed another person to trespass" ( Golonka v Plaza at Latham LLC, 270 AD2d 667, 669). Here, though, Van Brody has shown through its deposition testimony that it neither physically entered upon RCD's property nor caused or directed another to physically enter upon RCD's property until after RCD's alleged damage. RCD and the codefendants in fact present no contrary proof or even oppose this portion of Van Brody's motion. Such circumstances warrant granting Van Brody summary judgment regarding both the complaint's fourth cause of action and Tucci's cross claim, and, in turn, moot Van Brody's alternate request for summary judgment regarding its own common law indemnification cross claim. Accordingly, it is
ORDERED that Van Brody's summary judgment motion to dismiss RCD's second and fourth causes of action and therefore RCD's complaint against it is granted; and it is further
ORDERED that Van Brody's summary judgment motion to dismiss Tucci's indemnification/contribution cross claim against it is granted; and it is further
ORDERED that Van Brody's alternate request to grant its own common-law indemnification cross claim is dismissed as moot.
This constitutes the decision and order of this court.
ENTER,
J. S. C.