Opinion
2012-320
03-19-2019
UNIVERSITY AVENUE, LLC, Plaintiff, v. SIMBARI DESIGN ARCHITECTURE, PLLC and Thomas J. Simbari, Defendants.
Matthew D. Gumaer, Esq. Attorney for Defendants Goldberg Segalla, LLP 5786 Widewaters Parkway Syracuse, NY 13214-1840 Daniel J. Pautz, Esq. Attorney for Plaintiff Bond, Schoeneck & King, PLLC One Lincoln Center Syracuse, NY 13202-1355
Matthew D. Gumaer, Esq.
Attorney for Defendants
Goldberg Segalla, LLP
5786 Widewaters Parkway
Syracuse, NY 13214-1840
Daniel J. Pautz, Esq.
Attorney for Plaintiff
Bond, Schoeneck & King, PLLC
One Lincoln Center
Syracuse, NY 13202-1355
David H. Guy, J.
Defendant moves for summary judgment dismissing Plaintiff's claims for negligence, breach of contract and architectural malpractice. The motion is supported by an Affirmation from Matthew D. Gumaer, Esq., with attached exhibits and a memorandum of law, both dated November 13, 2018. Plaintiff filed an affirmation of counsel, with exhibits, and a memorandum of law, both dated January 23, 2019, in opposition to the motion. Defendant filed a February 21, 2019 reply affirmation in support of the motion.
For clarity, Simbari Design Architecture, PLLC and Thomas J. Simbari will collectively be referred to throughout as "Defendant." Plaintiff and Defendant are both sometimes referred to herein as "he" or "him" rather than "it."
Defendant's motion papers encompass both this action and a related action, Cortland Apartments, LLC v. Simbari Design Architecture, PLLC and Thomas J. Simbari (Cortland Supreme Index No. 11-591). In each case, the principal of the Plaintiff limited liability company is the same individual, Christopher J. Calabro, and Defendant's firm in each case is operated by Thomas Simbari, but the claims in the two cases arise out of different development projects.
As a threshold matter, in its opposition to this motion, Plaintiff asserts Defendant improperly joined the cases by bringing a single summary judgment motion for both cases. The Court held a phone conference on this issue on January 25, 2019, at which time Defendant's counsel confirmed he was not trying to join the two cases, but merely to reduce the voluminous paper filings required of separate motions. The parties acknowledge there was substantial "consolidated" discovery in the two cases, particularly with respect to the depositions of the parties, which alone exceed 600 pages. Pleadings in both cases are scanned and available electronically in the Cortland County Clerk's Office. All of Defendant's motion papers are entered in both cases. Both parties agree to cooperate to ensure a clear and complete record on appeal, should an appeal be pursued in either case. The Court does not consider the cases joined and considered the motions separately. All of the above renders Plaintiff's concern about improper joinder moot.
The motion was argued before the Court on February 28, 2019. The Court reserved decision, and counsel was given the opportunity to submit brief written responses to two cases brought forward by the Court during the oral argument. Counsel for Defendant submitted a letter on March 5, 2019.
FACTS
The parties do not dispute certain material facts at issue in this summary judgment motion. Plaintiff is the owner and developer of commercial rental property located at 1344-1350 University Avenue in the City of Rochester. (Calabro Deposition at 16-17). Plaintiff's principal is Christopher J. Calabro, who also owns and operates, through other LLCs, commercial and residential rental properties in at least Monroe and Cortland Counties. At the time of the events involved in this lawsuit, Defendant Simbari Design Architecture, PLLC, an architecture firm of which Defendant Thomas J. Simbari is the principal, was a tenant in Plaintiff's University Avenue property. (Calabro Deposition at 16, 30).
Throughout this Decision and Order, reference is made to exhibits attached to the Affirmation and the Reply Affirmation of Matthew Gumaer, Esq. as "Gumaer Ex. #." Exhibits attached to Plaintiff's Memorandum of Law in opposition to the motion are referred to as "Pautz Ex. #." Reference is also made to the deposition testimony of the principals of Defendant and Plaintiff.
In late March 2009, Syracuse Behavioral Health (SBH) expressed an interest in leasing a portion of the space in the University Avenue property. (Calabro Deposition at 311). By the end of that month, Plaintiff and Defendant had entered into an hourly agreement for Defendant to perform, on an as-needed basis, architectural services and design build-out services for the proposed SBH space. (Calabro Deposition at 381-382; 422-423). Plaintiff and Defendant both attended an initial project meeting with SBH on April 3, 2009, where it was clear that SBH needed to occupy the space, if leased, as soon as possible after October 1, 2009. (Simbari Deposition at 681-682; 696-697).
From April through November of 2009, Defendant completed floor plan sketches, preliminary drawings and revisions of those drawings relating to the project. (Simbari Deposition at 744-788, 792-793, 813-816, 821-828). Defendant sent Plaintiff and SBH an initial floor plan on April 17, 2019 and a fee estimate worksheet dated April 24, 2009, to estimate Defendant's total costs for preparing final construction drawings. (Simbari Deposition at 657, 731, 735-736; 770-771).
Defendant attended a May 9, 2009 meeting with Plaintiff and SBH, at which point he was told no one was requesting anything further from him at that time and he was "on hold." (Simbari Deposition at 718-720). Following another meeting with SBH attended by Defendant, on May 12, 2009, it was apparent to Defendant that the project was moving forward. (Simbari Deposition at 719, 823). By that time Defendant had sent a set of schematic floor plans to SBH and Plaintiff. (Simbari Deposition at 718-720). On May 13, 2009, SBH communicated its approval of the floor plan, and requested a second set of those plans because they had been accidentally destroyed. (Simbari Deposition at 777-778; Pautz Ex. 5).
On May 19, 2009, Defendant prepared and submitted to Plaintiff a preliminary construction cost estimate, which indicated the project would cost between $ 350,000 and $ 400,000 to complete. (Pautz Ex. 6). In early 2009, Defendant prepared and submitted an environmental assessment form to assist SBH in obtaining a required special use permit for the space. (Simbari Deposition at 701, 715, 805, 807). On July 29, 2009, Defendant sent Plaintiff an email to discuss obtaining a certificate of occupancy for the project. (Gumaer Ex. LL).
In October of 2009, Plaintiff began construction on the project, utilizing only the schematic and preliminary drawings prepared and provided by Defendant to that point. (Calabro Deposition at 350-352). Plaintiff testified that to build the project from those floor plans would require reliance on his individual contractors to fill in the details and perform their work in accordance with the relevant codes. (Calabro Deposition at 322-323).
A lease was entered into between SBH and Plaintiff on November 1, 2009. (Calabro Deposition at 350; Gumaer Ex. MM). The lease agreement states that "[l]andlord agrees to do all work and provide all materials as indicated in the Plans and specifications prepared by Thomas Simbari, and consisting of two pages, referred to herein." (Gumaer Reply Ex. A).
On December 3, 2009, Defendant became aware construction had started on the project without a building permit. (Simbari Deposition at 835). Defendant went to the SBH space on December 7, 2009 to document the as-built conditions. (Simbari Deposition at 836-837). In an e-mail to Defendant dated December 7, 2009, Plaintiff thanked him for his effort in expediting the work necessary to obtain a building permit. (Calabro Deposition at 361). On December 9, 2009, Plaintiff sent Defendant an email discussing Defendant getting documents to the City of Rochester code office to obtain the project building permit; Plaintiff stated that he acknowledged to the code office that "this is my fault." (Calabro Deposition at 375-378).
Defendant issued stamped construction drawings on or about December 11, 2009. (Simbari Deposition at 903-904). The City of Rochester identified four issues that needed to be addressed in order to issue the building permit. (Simbari Deposition at 903-904). One issue was the responsibility of the Defendant and addressed by him on or before December 17, 2009. (Pautz Ex. 12). The building permit was issued by the City of Rochester on December 18, 2009. (Pautz Ex. 13). Plaintiff was charged a penalty for commencing the work without the necessary building permit. (Gumaer Affirmation, Ex. PP, Raymond Deposition at 48).
Some of the work undertaken by Plaintiff's contractors in advance of delivery of the construction drawings and building permit was inconsistent with the construction drawings and therefore had to be redone. (Calabro Deposition at 372-375; 379-383, 386-388, 401-406). The construction drawings also identified certain fire safety construction requirements, which Plaintiff had not anticipated. (Calabro Deposition at 331-332, 340-341; 353-354, 366-368). In an email dated January 26, 2011, Plaintiff acknowledged to Defendant that the project ultimately cost $ 350,000, on the low end of the estimated range originally provided by Defendant. (Calabro Deposition at 414). Plaintiff now seeks recovery of the costs of the rework and the unanticipated fire code work. (Calabro Deposition at 406).
STANDARD FOR SUMMARY JUDGMENT
"[T]the proponent of a summary judgment motion must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 (1986) (internal citations omitted). The moving party must satisfy its initial burden "by tender of evidentiary proof in admissible form." Zuckerman v. City of New York , 49 NY2d 557, 562 (1980) (internal citations omitted). "This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 NY3d 470, 475 (2013) (internal citations omitted). If the party moving for summary judgment satisfies its initial burden, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez , supra at 324. "It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material issues of fact (or point to the lack thereof)." Vega v. Restani Constr. Corp. , 18 NY3d 499, 505 (2012).
CONTRACT CLAIM
It is well settled that the "elements of a cause of action to recover damages for breach of contract are (1) the existence of a contract, (2) the plaintiff's performance under the contract, (3) the defendant's breach of the contract, and (4) resulting damages." Palmetto Partners, L.P. v. AJW Qualified Partners , LLC, 83 AD3d 804, 806 (2d Dept 2011). In order for parties to form a binding contract,
...there must be a ‘meeting of the minds,’ such that there is a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. In determining whether the parties intended to enter a contract, and the nature of the contract's material terms, we look to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds. Stonehill Capital Mgt. LLC v. Bank of the W. , 28 NY3d 439, 448-449 (2016).
"In order to be generally enforceable, an oral agreement must arise by mutual assent and its terms must be sufficiently certain or definite." Ruppert v. Long Is. R.R. Co. , 281 AD2d 466, 467 (2d Dept 2001). "Omission of contractual terms, like indeterminacy, may render an agreement unenforceable." Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp. , 93 NY2d 584, 590-591 (1999), rearg denied 93 NY2d 1042 (1999). Moreover, "summary judgment is appropriate where a movant demonstrates fatal insufficiency of an oral contract's terms and the opposing party fails to raise a triable issue of fact to the contrary. Ruppert , supra at 467.
The "doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to" and "if an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract." 166 Mamaroneck Ave. Corp. v. 151 East Post Road Corp. , 78 NY2d 88, 91 (1991).
The facts set forth above are drawn largely from Plaintiff's own testimony and documentary evidence. To the extent they come from Defendant's testimony they are not materially disputed by anything offered by Plaintiff. The facts make clear that the oral agreement between the parties was an hourly retainer of Defendant to perform services and drawings as needed and as requested.
The initial floor plans and schematics provided by Defendant were requested by Plaintiff for purposes of providing the proposed tenant with a visualization of how the space might be suited to its needs. There is no dispute that these drawings were suitable for the purposes they were requested and prepared.
Plaintiff is an experienced developer. His decision to undertake renovation of the space without requesting formal construction drawings from Defendant was admittedly his alone, not made in consultation with Defendant, nor, as became evident later, the City of Rochester. When the City became aware of the construction and demanded a building permit in early December of 2009, Plaintiff requested Defendant provide the construction drawings necessary to obtain a building permit. That was done promptly by Defendant, who stamped construction drawings on December 11, 2009. Notably, there is no claim that Defendant was delinquent in the timing of the delivery of his drawings, which is indisputably a tacit acknowledgment by Plaintiff that Plaintiff had not earlier requested Defendant complete construction drawings for the project.
There is no allegation here that the preliminary drawings provided by Defendant were somehow represented by him to be suitable for construction. Many of them are stamped "preliminary, not for construction purposes." The preliminary drawings were suitable for the purposes for which they were requested; they simply did not have the detail needed to support a building permit and final construction, which was not requested until after Plaintiff had unilaterally undertaken to commence the work.
Defendant cannot be found to have breached his contract with Plaintiff where there is no evidence he did not perform the services he was retained to do when they were requested of him. Plaintiff's current allegation that Defendant should have anticipated and performed additional services not then requested of him, in support of work unilaterally undertaken by Plaintiff, does not demonstrate the existence of a triable issue of fact without independent corroborating admissible evidence. Clearly there was no "meeting of the minds" that all of Plaintiff's drawings would be suitable for construction.
While the scope of work included in a contract, particularly an oral one, may in many circumstances be a question of fact, this is not the case here, where the scope of requested work is acknowledged by Plaintiff and there is no material evidence offered supportive of a failure by Defendant to perform consistent with that scope. The Court finds that Defendant has established a prima facie case for dismissal of the contract claim and Plaintiff has not raised any material issues of fact in opposition. Defendant's motion for summary judgment dismissal of the contract claim is granted.
PROFESSIONAL MALPRACTICE CLAIM
"A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury." Kung v. Zheng , 73 AD3d 862, 863 (2d Dept 2010). It is incumbent upon the plaintiff to present expert testimony to support allegations of malpractice, except where the alleged act of malpractice falls within the competence of a lay jury to evaluate. 530 East 89 Corp. v. Unger , 43 NY2d 776, 777 (1977) (internal citations omitted).
The matter of Alvarez v. Prospect Hospital is instructive for the outcome of this motion not only for the standard for summary judgment, as recited above, but also in how that standard is applied in the context of a malpractice action. In Alvarez , the defendant-physician's motion for summary judgment on the plaintiff's medical malpractice claim was supported by an attorney's affirmation, hospital records, and the defendant's deposition testimony. Alvarez , supra at 325. The Court of Appeals rejected Plaintiff's position that a prima facie case for dismissing a malpractice claim requires an expert affidavit, holding that the "fact that defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof rather than affidavits of fact on personal knowledge, is not fatal to the motion." Id. (internal citations omitted).
In this case, Defendant has similarly established a prima facie case in support of his summary judgment motion on the malpractice claim through his deposition testimony and his attorney's affirmation. The architectural services requested by Plaintiff — initially schematics and floor plans, and ultimately detailed construction drawings — were suitably performed by Defendant, as and when requested. As with Plaintiff's contract claim, Defendant cannot be found to have failed to meet his professional responsibility by not performing services he was not contracted to do. Defendant's professional duty is measured consistent with the scope of the services he was retained to perform. See , e.g., Greenhaven v. Hutchcraft Associates, Inc. , 463 N.E. 2d 283 (Ind. Ct. App. 1984) ; Sch. Bd. v. Pierce Goodwin Alexander & Linville , 137 So.3d 1059 (Fla. 4th DCA 2014). In opposition, Plaintiff has offered only conclusory allegations, unsupported by a statement of expert opinion that Defendant did not fulfill his professional duty, required to support a finding of malpractice. Alvarez, supra , at 327. Defendant's motion for summary judgment dismissing the malpractice claim is granted.
Plaintiff's complaint also alleges a claim for negligence on the part of Defendant arising from the identical facts alleged to support the breach of contract and malpractice claims addressed above. The negligence claim, grounded on the same facts, is duplicative of the other claims and is also dismissed. See Garten v. Shearman & Sterling LLP , 52 AD3d 207, 208 (1st Dept 2008).
Having dismissed all of Plaintiff's claims, the Court need not reach the issue of proximate causation.
Therefore, based on the foregoing it is,
ORDERED , that Defendant's summary judgment motion is GRANTED in all respects and all claims of Plaintiff in this case are dismissed.
This Decision constitutes the Order of the Court.