Village Joint, Inc. v Berzak Assoc. Architects, P.C.

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Village Joint, Inc. v Berzak Assoc. Architects, P.C. 2012 NY Slip Op 30647(U) March 16, 2012 Supreme Court, New York County Docket Number: 105646/2007 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. LNNED ON 311612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: SALlANN SCARPULLA PART JSC' JusUce r4 Index Number : 105648/2007 VILLAGE JOINT INDEX NO. VS. MOTIONDATE 3& BERZAK ASSOCIATES ARCHITECTS SEQUENCE NUMBER .W SUMMARY JUDGMENT Tho following papars, numbered Ito Notice of MotIonlOrder to Show Came Anrwerlng Affldavltr - Exhlblta ! MOTION SEQ. NO. , , 30 Y , were rbrd on thin motion tolfor -Affldavita - Exhlblk IN O W . I Wd. -. Replylng Affldavlts IWd. - Upon the foregolng papers, It I ordersd that this motlon I s s P *- I . CHECK ONE: ..................................................................... ........................... MOTION IS: GRANTED c DENIED ] CHECK IF APPROPRIATE: ................................................ 0SElTLE ORDER 2. CHECK AS APPROPRLATE: 3. Y CASE DISPOSED DO NOT POST L DISPOSITION GRANTE IN PART OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT CT]REFERENCE [* 2] Plaintiffs, Index No.: 105646/2007 Submission Date: 0 1/25/2012 - againstBERZAK ASSOCIATES ARCHTTECTS, P.C. and MICHAEL DAVID BERZAK, Defendants, _l11_____ _1_______1_----_1------e----I---------- ----------------- For Plaintiffs: Sabharwal, Nordin & Finkal 350 Fifth Avenue, 59IhFloor New York, NY 10118 X For Defendants: Moms Duffy Alonso & Faley 2 Rector Street, 22ndFloor New York, NY 10006 Papers considered in review of t i motion for summary judgment: hs Plaintiffs Notice of Motion . . . . 1 Plaintiffs Mom of Law in Support of Motion.. . . . . . . . . . . . 2 AfF in Opposition. ............3 . Roply Aff. . . . . . . . . . . . . . . . . ..4 Defendants Aff in Support of Motion . . . . . . . . . . . . . . . . .- 5 Mem of Law in Opposition to Defendants Motion . . . . . . . . -4 Reply Aff . . . . . . . . . . . . . . . . . .. 7 PRESENT: HON. SALIANN SCARPULLA, J.: In this action for professional negligence and breach of contract, plaintiffs The Village Joint, Inc. ( VJ ) and Stephen Choi ( Choi) (collectively plaintiffs ) move for summary judgment pursuant to CPLR 6 3212 (motion sequence no. 3). Defendants Berzak Associates Architects, P.C. ( Berzak Associates ) and Michael David Berzak ( Berzak ) (collectively defendants ) separately move for summary judgment dismissing 1 [* 3] the complaint (motion sequence no. 4). Motion sequence nos. 3 and 4 are consolidated for disposition. This action arises out of a letter agreement dated March 21,2006 (the agreement ) whereby Choi retained defendants to provide architectural services for a renovation project (the pr~ject ~)53 1 East 13* Street in Manhattan (the premises ). at Choi intended to open a restaurant with live musical performances at the premises. The agreement included a list of services defendants would provide. This list .. . ... .. included the following: File and obtain approval of Alteration Type 1 application as applicant for new use and occupancy of Eating and Drinking Establishment, UG 6, with occupancy of 200 persons on first floor, used in conjunction with storage and accessory uses in cellar and on mezzanine. Choi attests that he needed a location with a maximum capacity of no less than 200 persons, and after receiving assurances from defendants that they would obtain approval & for this capacity, Choi formed VJ and entered into a lease for the premises. Thereafter, defendants provided Choi with architectural plans for the renovations. Defendants subsequently submitted these plans to the Department of Buildings ( DOB ). In a letter dated July 14, 2006, the DOB notified defendants that it intended to revoke their work permit for the project because of code violations in the architectural plans and designs, The DOB also directed defendants to request a meeting with a DOB Plan Examiner to discuss these objections and avoid revocation. 2 . - [* 4] Berzak testified at his deposition that defendants attempted to schedule a meeting with the DOB to discuss the objections, but were unable to do so because Choi had an outstanding fine fiorn a previous DOB violation. Choi paid the outstanding fine in early August, and Berzak testified that defendants contacted DOB within a day of the payment to schedule the meeting. Choi attests that on or about August 18,2006, defendants instructed him to continue the renovation project according to the original plans. According to Choi, - . - [d]efendants assured him that the DOB s objections were incorrect and that they would be resolved without making any changes to the Initial Plans. On August 25,2006, before defendants met with the DOB, the DOB issued another stop work order because the DOB had not received a sufficient response on its previous objections. Berzak testified that after DOB issued this stop work order, his .. expediter met with a DOB plan examiner to go over the bbj ections set forth in the DOB s July 14,2006 letter. According to Berzak, Choi did not want to contest the DOB objections, but instead directed defendants to revise the initial architectural plans to expedite re-approval. On September 12,2006, defendants submitted a post-approval amendment to the initial plans. The maximum occupancy on the revised plans was reduced fiom 200 persons to 180 persons, with an allowance of 135 persons on the fust floor. On September 13,2006, the DOB rescinded and lifted the August 25, 2006 stop work order. 3 . [* 5] August 25,2006 stop work order because of the revisions. According to Choi, he never would have formed VJ or executed the lease to the premises if he had known that the maximum capacity of the premises would only be 180 persons. Plaintiffs commenced this action in April 2007, asserting causes of action for professional negligence and breach of contract. In the cause of action for professional negligence, plaintiffs allege that defendants provided architectural designs that violated .. . - - numerous codes and regulations, ignored DOB directives to remedy these violations, and instructed plaintiffs to continue work on the project despite these violations. In their breach of contract cause of action, plaiotiffs allege that defendants failed to perform their obligations under the letter agreement, including obtaining approval of an architectural design with a capacity of 200 persons on the premises first floor. I . \ Plaintiffs now moye for summary judgment, arguing that defendants are liable for professional negligence because they miscalculated the maximum occupancy of the premises and failed to respond to DOB objections in a timely manner. Plaintiffs also contend that defendants materially breached the contract because defendants failed to obtain approval of an application for an Eating and Drinking Establishment with a maximum occupancy of 200 persons on the first floor. In opposition to plaintiffs summary judgment motion, and in support of their own motion for summary judgment, defendants argue that there is no evidence to support the 4 [* 6] professional negligence claim because plaintiffs have failed to provide a proper expert affidavit. Defendants hrther maintain that the breach of contract cause of action should be dismissed because, in the agreement, they did not guarantee that they would obtain approval of the application for an establishment with a 200 person maximum capacity. Discussion A movant seeking s m a r y judgment must make aprimu facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegradv. New York Univ. Mea . Ctr., 64N.Y.2d 85 1, 853 (1985). Once a showing has been made, the burden shifts to the opposing party, who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Zuckerman v. City o New York, 49 N.Y.2d 557 (1980). f To make aprima facie showing of professional negligence, a plaintiff must present .. credible expert testimony that defenddnts deviated fiom locally prevailing standards of practice. Tulon Air Sews. LLC v. CM14 Design Studio, P.C., 86 A.D.3d 5 11, 5 15 ( lSt Dept. 201 1). Here, plaintiffs submit an afidavit fiom Vijay K m m ( Kumar ), a licenced professional engineer, which incorporates by reference an attached Expert Report. Though the Expert Report lists various deficiencies in defendants work on the project, it never attests to the standard of professional care and skill [defendants] allegedly failed to meet, Thaler & Thaler v. Gupta, 208 A.D.2d 1130, 1132 (3d Dept. 1994), nor does it state specifically that defendants deviated from the norms of their 5 [* 7] profession, Thus, plaintiffs have failed show entitlement to summary judgment on the professional negligence cause of action. See Suppiah v. Kulish, 76 A.D.3d 829, 832 (1 Dept. 2010). Moreover, material issues of fact preclude summary judgment on defendants motion to dismiss the professional negligence cause of action. In support of their motion, defendants present an expert affidavit fiorn Denise Bekaert ( Bekaert ). Bekaert attests in her affidavit that defendants did not deviate from accepted standards within the . . architectural profession, and that the stop work orders and objections DOB issued during the course of the project are common for these types of renovation projects. In their opposition papers, plaintiffs submit a second affidavit from Kumar. In this affidavit, Kumar attests that defendants materially deviated from the ordinary and reasonable skill usually exercised by one in the architectural profession by, inter alia, .. failing to take my measurements before determining the maximum possible occupdncy for the premises. The Court finds that plaintiffs and defendants dueling expert affidavits are suficient to raise an issue of fact as to whether defendants are liable for Dept. professional negligence. See Frye v. Montejore Med. Ctr., 70 A.D.3d 15, 26 ( lSt 2009). Triable issues of fact also preclude summary judgment for either party on the breach of contract cause of action. Breach of contract actions arising out of professional malpractice only lie %here a specific result is guaranteed by the terms of the agreement . 6 [* 8] . . . 530 East 89 Corp v. Unger, 54 A.D.2d 848, 849 (lstDept. 1976), quoting Carr v. Lipshie, 8 A.D.2d 330, 332 (lstDept. 1959). Defendants argue that they are entitled to summary judgment on plaintiffs breach of contract cause of action because the agreement did not guarantee a specific result. However, pursuant to the plain language of the agreement, defendants agreed to [flile and obtain approval of Alteration Type 1 application as applicant for new use and occupancy of Eating and Drinking Establishment, UG 6, with occupancy of 200 persons on frst floor. (Emphasis supplied,) Further, defendants do not contest that they failed to obtain this result, as the final approved plan had a maximum capacity of 180 persons i n total, and 135 persons in the first floor. Nevertheless, there are issues of fact as to whether plaintiffs waived the requirement that the approved renovation plan application have an occupancy maximum of 200 persons. Waivkr is the intentional relinquishment of a known right, &d whether a party intended to relinquish that right is generally a question of fact for a jury to resolve. Fundamental Porfolio Advisors v. Tocqueville Asset Management, 22 A.D.3d 204,209 (1 Dept. 2005). Here, Berzak testified that, even though he wanted to dispute the DOB objections to the original renovation plan, Choi directed him to make revisions to the initial renovation plan to expedite re-approval. Accordingly, an issue of fact remains as to whether Choi knowingly relinquished defendants compliance with this section of the agreement. 7 - [* 9] In accordance with the foregoing, it is hereby ORDERED that the summary judgment motion by plaintiffs The Village Joint, Inc. and Stephen Choi is denied; and it is hrther ORDERED that the summary judgment motion by defendants Berzak Associates Architects, P.C. and Michael David Berzak, R.A., is denied. This constitutes the decision and order of the Court. Dated: New York, New York March\q 2012 ENTER: 8

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