Morris v Attia

[*1] Morris v Attia 2005 NY Slip Op 50397(U) Decided on March 15, 2005 Supreme Court, New York County Solomon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 15, 2005
Supreme Court, New York County

Diane Morris, as Personal Representative of the Estate of Brian Morris, Plaintiff,

against

Eli Attia, Rosenwasser/Grossman Consulting Engineers, P.C. and Economides & Goldberg, Defendants.



112831/03

Jane S. Solomon, J.

In this wrongful death action, Defendant Eli Attia ("Attia") moves to dismiss the complaint or, in the alternative, for summary judgment. Plaintiff Diane Morris, as Personal Representative of the Estate of Brian Morris ("the Estate") cross-moves pursuant to CPLR § 602 (a) for an order consolidating the matter with a related one pending before another justice of this Court.

For the reasons set forth below, Attia's motion is denied, and the Estate's cross-motion is granted.

Background

In May 2001, Brian Morris ("Morris"), the deceased husband of Diane Morris and an apparently well-compensated British executive transferred to New York by his employer, rented a duplex apartment comprising the fourth and fifth floors of a building located on East 67th Street in Manhattan. At the rear of the fourth floor were two seven foot, five inch high sliding glass windows that flanked a picture window. (The parties dispute whether they should be referred to as doors or windows). The windows stood upon a riser that ran the length of the back wall, which the Estate's expert measured at 18 inches high and 29 inches deep. Significantly, these windows opened directly to the outside of the building, as there was no balcony, nor were there any protective measures in place to prevent them from opening to their full 29 inch width.

In the early morning hours of August 3, 2001, Morris fell through one of the open windows and plunged to his death on the concrete patio below. The Estate contends that opening the windows required an unreasonable amount of force, so that in opening one while standing on the polished wood riser, Morris slid and accidently fell out of the window. [*2]

Pursuant to a June 18, 1979 agreement, Attia, a

licensed architect, designed the building in question along with ten other contiguous townhouses on the same block. Then, on August 5, 1987, he contracted by letter with Sheldon Solow, owner of the buildings, to convert two of the townhouses, including that which Morris rented, "from single family to two-family buildings," including design of the window from which Morris fell. The second agreement incorporated the terms of the first.

Specifically, section 1.5.4 of the original contract states: The Architect shall visit the site at intervals appropriate to the state of construction or as otherwise agreed by the Architect in writing to become generally familiar with the progress and quality of the Work and to determine in general if the Work is proceeding in Accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work.

Attia contends that he designed the windows to include a stopping mechanism to prevent them from opening more than 4.5 inches and a safety bar to prevent an individual from falling out; he alleges that both devices were intended to be used together to provide additional protection. The plans he submits in support of his motion are not easily read, and the court cannot glean from them whether they call for either protective measure.

In his reply affidavit to the current motion, Attia contradicts himself and argues that a window subcontractor, Thermal Insulated Products ("Thermal"), was responsible for design of the windows and the stopping device. He refers to the provision of a subcontract, at Rider 2, paragraph 105, dated October 4, 1988, between Thermal and contractor E. 67th Street Townhouse Building Corp. that states Thermal's duties are to "[i]nclude all hardware for operable windows. A stop system must be designed into the windows that will limit operable windows from opening beyond a degree specified by the Architect. This item will be removable with special tool or key so as to allow for cleaning of the windows."

The Estate contends that Attia's plans do not call for a stop mechanism and the safety bar they allegedly describe is insufficient protection. Further, it argues, even if the plans did call for either, they were never installed, and Attia was required by section 1.5.4 of the original contract to supervise their installation.

On October 2, 1990, Attia signed a Final Payment Certificate & Release of Lien by which he affirmed that "all portions of the work furnished and performed...are in accordance with the Contract and Contract Documents...." Attia contends that soon thereafter the City of New York issued a certificate of occupancy ("CO"); the Estate submits a CO for the apartment dated April 23, 2002, alleging that this was the only one issued after renovations were completed.

In May 2002, the Estate commenced a wrongful death action against Attia, Solow, and other parties, including the building's management company. (Diane Morris v. Solow Mgmt. Corp., Townhouse Co., LLC, Solow Bldg. Co., and Eli Attia, NY Co., index no. 109209/02). The matter was assigned to a colleague, who granted the Estate's motion to add additional defendants on December 23, 2003.

Because Attia was an architect and his alleged "professional performance, conduct or omission...occur[red] more than ten years prior to the date of [the] claim," the Estate was required to give him written notice of its claim at least 90 days before commencement of its [*3]action against him. CPLR § 214-d (1). Upon recognition that it failed to do so, the Estate voluntarily discontinued the action as against Attia on June 6, 2003.

Thereafter, between July 1 and 10, 2003, the Estate served each of the named defendants herein with a notice of claim dated June 18, 2003 and filed the instant suit on November 26, 2003. By separate Orders dated May 19, 2004, I granted respective motions for dismissal and summary judgment made by defendants Rosenwasser/Grossman Consulting Engineers, P.C. and Economides & Goldberg, engineering companies allegedly involved in the construction of the window. Attia remains the only defendant.

Discussion

Attia now contends that he is entitled to dismissal, or in the alternative, summary judgment, though issue has not been joined, because (1) the Estate has failed to meet its burden under CPLR § 3211 (h) of showing "a substantial basis in law" that Attia was negligent or his alleged negligence proximately caused Morris's death; and (2) the action was untimely. The Estate opposes the motion and cross-moves to consolidate this matter with that one still pending before Justice Schlesinger.

I. Attia's Negligence

CPLR § 3211 (h) sets forth a heightened standard of review for suits brought against design professionals based on work completed more than ten years prior to the initiation of the action. It requires that in opposition to Attia's motion to dismiss, the Estate demonstrate that a "substantial basis in law exists to believe that the performance, conduct or omission complained of such licensed architect...as set forth in the notice of claim was negligent and that such performance, conduct or omission was a proximate cause of...[Morris's] wrongful death." The legislative memorandum supplied in support of adoption of CPLR § 3212 (i), which nearly mimics the language of section 3211 (h), defines the substantial basis standard as: "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact. It is intended to be less than a 'preponderance of the evidence standard.'" See CPLR § 214-d, V. Alexander, Practice Commentaries, at 459 (McKinney's 2003).

The Legislature intended 3211 (h) to provide design professionals who completed work more than 10 years before the initiation of the action against them with a rapid remedy for non-meritorious claims, because a third-party negligence action against them would not accrue until the injury occurred. See CPLR § 214-d, V. Alexander, Practice Commentaries, at 214-15 (McKinney's 2003). In effect, the section serves as a burden shifting mechanism whereby plaintiff must show merit to its claims at the dismissal stage.

An architect is required to use that reasonable care and skill in design, or that degree of care that a reasonably prudent architect would use to avoid a defect that would create an unreasonable risk of harm. See Cubito v. Kreisberg, 69 AD2d 738 (2d Dep't 1979). To survive this motion, the Estate must show a substantial basis in law to believe that Attia's designs deviated from those that would have been prepared by a reasonably prudent architect.

Attia argues specifically that the case against him should be dismissed because his designs were in compliance with the New York City Health Code Section 131.15 ("the Window Guard Law") in that he designed a stop mechanism to prevent the windows [*4]from opening to a width greater than 4.5 inches, though this section is not applicable because it only applies to multiple dwellings containing three of more apartments. He also argues that he was not negligent as his designs also called for a safety bar to be placed across the opening.

The safety bar allegedly is exhibited in the schematic he submitted. With regard to the stopping device, he argues both that he designed one and that he was not responsible for its design. In support of his position that he did design one, he refers the court's attention to notes memorializing a January 21, 1985 meeting between him and Sheldon Solow ("Solow"), the buildings' owner, that read in relevant part: "It was also suggested that stops be installed in the tracks of the Living Room sliding windows to prevent a dangerously wide opening." Memo. dated Jan. 21, 1985, Exh. C to the Estate's Cross-Motion. It is not clear how these notes support his position as the meeting in question occurred well before he contracted with Solow to perform renovations on the townhouses.

The Estate contends that Attia was negligent in his design of the windows and his failure to oversee the construction of them. In support of its position, it submits the affidavit of an expert, Douglas Korves ("Korves"). Korves alleges that Attia's designs were inadequate in that they called only for a "safety bar" that was insufficient to support the weight of "most adults" and that they failed to provided for any sort of "door stop" system that would have prevented the windows from opening more than 4.5 inches wide, the accepted standard at the time. He further contends that based on his inspection, no safety bar was ever installed, as there are no screw holes in the window frame to indicate any were drilled where Attia specified. Generally, a motion to dismiss addresses the sufficiency of the complaint. Even considering the elevated standard under which the Estate's claims should be reviewed here, which is most akin to that normally applied on summary judgment, Attia's motion must be denied. The Estate has offered evidence to support a substantial basis in law to hold Attia liable and, at least, create triable issues of fact as to whether (1) Attia was responsible for the design of the window; (2) he designed a stopping device; and (3) his design was reasonable.

However, Attia's alleged failure to supervise the installation of a safety device would not establish his third-party liability to the Estate. Attia admits that the terms of the contract required that he was to determine if work was proceeding in accordance with his plans and specifications. See Attia Aff. ¶ 6; Mellon Aff. ¶ 10; Contract dated June 27, 1979, at 1.5.4, attached as Exh. A to Attia Aff. But there is no indication in the record that Attia's contract provided him with [*5]the right or duty to control the manner in which work proceeded, nor is there any indication that Attia actively caused or contributed to the accident. In such circumstances, he is not liable for injuries to third parties based on his alleged failure to supervise. See Amazon v. British American Development Corp., 216 AD2d 702 (3d Dep't 1995); Jaroszewicz v. Facilities Development Corp., 115 AD2d 159 (3d Dep't 1985).

Accordingly, Attia's motion to dismiss is denied; summary judgment is inappropriate at this stage in the proceedings, where issued has yet to be joined.

II. Statute of Limitations

Attia also argues that he is entitled to dismissal because the Estate failed to timely initiate this action. At issue is CPLR § 214-d (3), which provides that "service of a notice [of claim]...shall toll the applicable statue of limitations to and including a period of one hundred twenty days following such service."

Specifically, Attia argues that the subsection extends the statue of limitations period for 120 days subsequent to filing of the notice of claim, such that service of the notice of claim sometime between July 2 and 10, 2003 (the Estate does not provide an exact date of service on Attia) extended the statute of limitations only to November 2 or 10, 2003, respectively, depending on the actual date of service. The Estate argues that its service of the notice stopped the clock on the limitations period, which then recommenced upon the expiration of 120 days, making its complaint timely.

Estates, Powers and Trust Law § 5-4.1 sets the statute of limitations for a wrongful death action at two years from the decedent's death. Morris's death occurred on August 3, 2001; the statute of limitations on the Estate's claims generally would have expired on August 3, 2003, but for service of the 214-d notice on Attia. The clear language of subsection (3) indicates that the legislature intended not to give a plaintiff only 120 days after service of notice of claim, but to "toll," in other words, to stop the clock, for 120 days subsequent to service of the notice.

Giving Attia the benefit of the doubt that he was served with notice of claim on July 2, 2003, subsection (3) tolled the applicable statute of limitations until October 30, 2003, at which point the Estate had an additional 32 days, that remaining on the two-year period, to file against him. The limitations period was extended to December 1, 2003, and the Estate's initiation of this action on November 26, 2003 was timely.

The court is mindful that CPLR § 214-d was created to provide "an expedited procedural device to quickly dispose of [*6]cases brought against a design professional more than ten years after completion that lacks a basis in substantial evidence." CPLR § 214-d, 1997 Commentary and Legislative Memorandum, at 2416. The legislature, however, chose not to adopt the position advocated by Attia.

III. The Estate's Cross-Motion for Consolidation

The Estate cross-moves pursuant to CPLR § 602 (a) to consolidate this action with the earlier one. Attia opposes consolidation, alleging that the Estate's attempt to consolidate only now is an effort at judge shopping.

"It is preferable to try related actions together, in order to avoid a waste of judicial resources and the risk of inconsistent verdicts." Williams v. Property Services, LLC, 6 AD3d 255, 256 (1st Dep't 2004). Consolidation is favored where cases present common questions of fact and law, unless the opposing party can demonstrate that consolidation will prejudice a substantial right. Amtorg Trading Corp. V. Broadway & 56th Street Assocs., 191 AD2d 212, 213 (1st Dep't 1993). Indeed, absent demonstrated prejudice, it is an abuse of discretion to deny

consolidation. See Raboy v. McCrory Corp., 210 AD2d 145 (1st Dep't 1994).

Common issues of law and fact exist between this action and the earlier one in which Attia originally was named. Consolidation of both actions therefore is required. See CPLR § 602 (a). This dispute would have been obviated had the party filing the RJI properly marked on it that this action is related to the first one.

Accordingly, it hereby is

ORDERED that defendant Attia's motion is denied, and

the Estate's cross-motion for consolidation is granted; and it further is

ORDERED that the above-captioned matter is consolidated with Diane Morris v. Solow Management Corp., et al., Index No. 109209/02, and the consolidated action shall bear the following caption:

DIANE MORRIS, as Personal

Representative of the Estate of

Brian Morris,

Plaintiff,

-against-

SOLOW MANAGEMENT CORP., [*7]

TOWNHOUSE CO., LLC, SOLOW BUILDING

CO., LLC,EAST SIXTY-SEVENTH

TOWNHOUSE BUILDING CORP.,

SHELDON SOLOW, HRH CONSTRUCTION

CORP., HRH CORP. f/k/a CONSTRUCTION

CORP., THERMAL INSULATED PRODUCTS,

HEITMANN & ASSOCIATES, INC. f/k/a

ANTOINE-HEITMANN ASSOCIATES, INC.,

TRACO, INC., and ELI ATTIA,

Defendants.

And it further is

ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it further is

ORDERED that upon service on the Clerk of the Court of a copy of this Order with notice of entry, the Clerk shall consolidate the papers in the actions hereby consolidated and shall mark his records to reflect the consolidation; and it further is

ORDERED that a copy of this Order with notice of entry shall also be served upon the Clerk of Trial Support (Room 158), who is hereby directed to mark the court's records to reflect the consolidation; and it further is

ORDERED that Attia is directed to answer under the consolidated index number within 20 days of service of a copy of this Order with notice of entry.

Dated: March 15, 2005

ENTER:

______________________

J.S.C