Board of Educ. of the Farmingdale Union Free School Dist. v Grillo
Annotate this Case
Download PDF
Board of Educ. of the Farmingdale Union Free School Dist. v Grillo 2012 NY Slip Op 31749(U) June 20, 2012 Sup Ct, Nassau County Docket Number: 002947/06 Judge: Stephen A. Bucaria 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. [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: RON. STEPHEN A. BUCARIA Justice TRIAL/lAS , PART NASSAU COUNTY BOARD OF EDUCATION OF THE ARINGDALE UNION FREE SCHOOL INDEX No. 002947/06 DISTRICT MOTION DATE: April 11 , 2012 Motion Sequence # 007 008 Plaintiff -against- JOHN A. GRILLO , ARCHITECT , P. JOHN A. GRILLO , Individually, CHRISTOPHER HUNT , GREYH WK NORTH AMERICA , L.L.C. IRWIN CONTRACTING , INC. , JOHN C. IRWIN Individually and KIRCO INDUSTRIES , CORP. Defendants. The following papers read on this motion: Notice of Motion....................................... XX Affirmation in Opposition......................... X Affidavit in Support................................... X Reply Affidavit.......................................... X Memorandum of Law................................. XXX Reply Memorandum of Law....................... XX Architect , P. , John A. Grilo , Individually, and Christopher Hunt (collectively referred to herein as the " Grilo Defendants ) (Mot. Seq. Motion by defendants John A. Grilo , 007) for partial summary judgment dismissing plaintiff Board of Education of the Farmingdale Union Free School District's causes of action for fraud , breach of contract [* 2] Index no. 002947/06 in part and denied in part. BOARD OF EDUCATION OF THE FARMINGDALE UFSD punitive damages res ipsa loquitur and negligence is I:ranted Contracting, Inc. and John C. Irwin , Individually (collectively referred to herein as the " Irwin Defendants ) (Mot. Seq. 008) for partial Motion by defendants Irwin summary judgment dismissing plaintiff Board of Education of the Farmingdale Union Free School District' s (hereinafter referred to as the " School District" ) seventh , eighth , eleventh denied in part. I:ranted in part and twelfth and thirteenth causes of action is This action stems from the alleged improper construction of new additions at the W. Howitt Middle School (" Howitt" ) located in Farmingdale , New York. Specifically, the Howitt construction project consisted of a two story L-shaped classroom addition (" sixth grade wing ) and a one story music addition , both with masonry exterior cavity walls and flat roofs. 1999, plaintiff entered into a written contract with the Grilo Defendants to provide architectural services to the plaintiff, including but not limited to , the On or about July preparation of designs , plans and specifications for the construction at Howitt. Subsequently, in June 2000 , plaintiff entered into a written contract with defendant Greyhawk North America , LLC (" Greyhawk" ) to act as the Construction Manager for the School District. After conducting the required competitive bidding, in September 200 1 , plaintiff awarded the contract for the construction of the Howitt proj ect to the Irwin Defendants as the General Contractor. Thereafter , in or about October 200 defendant Kirco Industries , Corp. (" Kirco was retained by the Irwin Defendants to act as the masonry subcontractor responsible for the construction of the interior walls and exterior cavity walls at Howitt. 1 , Construction at Howitt began in or about November 2001 and ended in or about July 2003. However , during construction , and after a rain event in October 2002 , problems arose with the walls of the sixth grade wing; specifically, the walls thereat were noticed to be continuously moist. While plaintiff claims that the Grillo Defendants and the Irwin Defendants became aware of water infitration to several areas of the newly constructed sixth grade wing including the north and east facing walls , Christopher Hunt , the project architect for the Howitt project , states that the problem was only limited to the north wall. Hunt states that the Grilo Defendants and the Irwin Defendants blamed each other for the problem and that the conflcting opinion between the Grilo Defendants and the Irwin Defendants as to [* 3] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 responsibility was never resolved. Defendants submit that despite several tests and probes into the moist walls , the cause of the moisture was never determined and the probes were all inconclusive. Nonetheless, at some point following the tests and probes , it was proposed , and ultimately approved , that a sealant be placed on the north wall. The cost of the sealant was paid from the project allowances and with plaintiff, School District's approval. The sealant was applied to the north wall of the sixth grade wing in the late spring of 2003. . In October 2005 however , after another heavy rainstorm , the classrooms on the sixth floor wing again leaked from the north side and the east side. In bringing this action against the architects (the Grilo Defendants), the general contractor (the Irwin Defendants), the construction manager (Greyhawk) and the masonry subcontractor (Kirco), plaintiff claims that the cause of such water infitration is a combination of architectural design defects and construction defects by all named parties. Plaintiff asserts 13 causes of action in its complaint , as follows: (1 ) against Grilo Defendants for negligence; (2) against Grilo Defendants for breach of contract; (3) against John A. Grilo , Architect P. C. and John A. Grilo , individually, for negligence as a School District Architect; (4) againstJohnA. Grilo , ArchitectP. C. and JohnA. Grilo , individually, for breach of contract as School District Architect; (5) against defendant Greyhawk for negligence; (6) against defendant Greyhawk for breach of contract; (7) against the Irwin Defendants for negligence; (8) against the Irwin Defendants for breach of contract; (9) against Kirco for negligence; (10) against Kirco for breach of contract; (11) against all (12) against all defendants for defendants for res ipsa loquitur and negligence per se; fraudulent concealment and misrepresentation; and (13) against all defendants for punitive damages. Upon the instant motions , the Grilo Defendants and the Irwin Defendants both seek summary judgment dismissal of the claims asserted against them. Specifically, in support of their motion , the Grilo Defendants assert five bases for their entitlement to summary judgment. First , plaintiff s claims for fraud based upon the application of the sealant and the use of allowances must be dismissed because the fraud allegations sound in contract and malpractice and plaintiff has failed to present clear and convincing evidence that would [* 4] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 establish a misrepresentation of a material fact, falsity, scienter or reliance. Second plaintiffs cause of action for breach of contract based upon the use of allowances to pay for certain work must be dismissed because said practice was part of the course of conduct acknowledged and approved by the plaintiffs employees. Third , the record is devoid of evidence that support an award of punitive damages and said damages may not be awarded in actions for breach of contract. Fourth , plaintiff s damages must be limited by the economic loss doctrine such that the plaintiff must be prohibited from recovering for costs to tear down and replace walls that are not leaking. Lastly, New York law does not recognize an res ipsa loquitur independent cause of action for or punitive damages. Similarly, the Irwin Defendants assert four bases for their entitlement to summary judgment. First , John Irwin , the President of Irwin Contracting Inc. , is not a part with the School District and he does not owe any contractual to any contract or legal obligations to the plaintiff. Second , the Irwin Defendants substantially completed their work in accordance with the contract documents and are not responsible for any damage or defects that may exist in the exterior walls of the project. Third , the fraud claim is factually and legally insufficient as a matter of law because: they seek solely to enforce the separate contractual obligations of the Grilo Defendants Greyhawk and the Irwin Defendants and do not support or give rise to a cause of action for fraud; the School District did not rely on the Irwin Defendants to prepare the contract plans and specifications for the Howitt Project or to determine whether the contract work was performed and completed in accordance with the contract plans , specifications and contract documents; and any allegations that the Irwin Defendants did not fully disclose its concerns about the wet north wall condition that occurred in late 2002 and that the Irwin Defendants knew or should have known that the application of the water repellant product on the north wall would not remediate water infitration at that location are refuted by the evidence which establishes that Edward Cullen , as the Director of Facilties for the plaintiff School District who was responsible for inter alia attending project meetings and reviewing payment applications after architect and construction manager approval , participated in ongoing discussions and meetings concerning the wet north wall as well as the extensive tests inspections and examinations of the north wall. Defendants argue that the fraud claim also fails because the application of the silicone product fully remediated the north wall. Lastly, the Irwin Defendants maintain that there is no basis on which to predicate a [* 5] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 claim for punitive damages. Notably, in support of their motion for summary judgment, the Grilo Defendants rely upon the affidavit of their expert , Mark Ells , R. , a licensed architect , who states , in pertinent part , as follows: For the reasons set forth below , based upon good and accepted architectural and investigative principles and practices , there is no evidentiary or investigative basis to conclude that the brick wall along the west side of sixth grade wing at Howitt is not preventing water penetration or is not draining as intended. Therefore , there is no basis to conclude within a professional degree of certainty that exterior walls along the west side of sixth grade wing must be replaced. In the course of the probes , I examined the exterior brick wall at the west side of the sixth grade wing where no leaks have been reported. My employees examined the same between the (concrete masonr unit) and brick walls. They reported that there was no visible evidence of deterioration of the (concrete masonry unit) or brick wall , nor visible evidence to suggest that water that entered the cavity did not drain as intended. There was no evidence that water had become trapped in the cavity. This information was confirmed by photographs of that area that I have reviewed. 11. Because there is no objective evidence of damages to the (concrete masonry unit) or brick walls and no testing to prove that water is entering the cavity and , there is no basis for a design professional to reasonable degree of certainty that the walls are is not draining as intended conclude within a deteriorating due to water infitration and that repairs are therefore required to been reported. the west side of the sixth grade classroom addition where no leaks haye Incidentally, while the evidence submitted herein consistently refers to leaks and defects in the north and east walls at Howitt's new additions , the Grilo Defendants expert appears to have explored only the west walls. This is wholly insufficient. Mark Ells does not appear to have made any assessments as to the north or the east [* 6] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 walls at the sixth grade wing at Howitt. Notably, it is the north and the east walls that are the offending walls and form the primary basis of this action by the School District. Having failed to examine and assess the offending walls , the Ells affidavit is rejected as lacking sl Azzaro v. Vasquez v. JRG Realtv Corp. 81 AD3d 555 (1 sl Motels. Inc. 62 AD3d 525 (I Dept. 2009)). Further , Ells fails to recite the manner (Ioffe v. Hampshire House Apt. Corp. 21 AD3d 930 309 AD2d 788 (2 Dept. 2003)). Krash v. Bishop-Sanzari. J. Therefore , since the affidavit fails to deal fully with the claims raised in the action , this Court finds that Ells s affidavit lacks probative value with respect to the defendants ' liabilty on proper foundation Dept. 201 1); Super in which he came to his conclusions Dept. 2005); the theories alleged. The Irwin Defendants do not reply upon any expert in support of their motion. Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact or where the issue is " arguable Silman v. Twentieth Centurv-Fox Film Corp. 3 NY2d 395 404 (1957)). Indeed , in determining a motion for summary judgment , this Court' s function is not to resolve issues of fact or to determine matters of credibility but to determine whether issues of fact exist precluding Roth v. Barreto 289 AD2d 557 558 (2 Dept. 2001)). summary judgment Viewing the evidence in the light most favorable to the non-moving party, the plaintiff, and giving the non-moving part the benefit of all reasonable inferences which can Fun dam en tal Portfolio Advisors. Inc. v. Tocqueville Havmon v. Pettit 9 NY3d 324 (2007)), this Asset Mgt.. L.P. 7 NY3d 96 , 105- 106 (2006); Court determines the Grilo Defendants and the Irwin Defendants ' motions as herein below. be drawn from the evidence herein In it's claim for breach of contract against the architects , the School District claims that the Grilo defendants were obligated to provide architectural serVices in connection with the Howitt project and exercise the duty of care of an architect with a high level of experience and expertise required of architects in the same or similar circumstances. The School District claims that the Grilo Defendants breached their contract with the plaintiff when they failed to inter alia prepare sufficient and proper designs , plans , specifications drawing and instructions; properly supervise the construction and/or installation at Howitt; provide , procure , design and/or obtain sufficient repairs , resolutions , solutions , and or replacement of the interior and/or exterior walls of Howitt. Plaintiff also claims that the Grilo Defendants breached their contractual obligation to properly advise the plaintiff regarding the defects and deficiencies in the walls at Howitt , before , during and after construction and that they failed to discover the defects and/or deficiencies in the designs [* 7] BOARD OF EDUCATION OFTHE FARMINGDALE UFSD Index no. 002947/06 plans , specifications , drawings , instructions , and/or construction of the walls at Howitt. The School District maintains that because it is wholly untrained in matters connected with architectural design and/or construction , it reasonably relied upon the Grilo Defendants ' recommendations , representations , expertise and advice when it accepted Howitt in its substantially completed state and that as a direct and proximate result of the defendants breach of the contract , it has sustained extensive damage. Initially, it is noted that the Grilo Defendants do not seek summary judgment dismissal of this cause of action in its entirety; rather , the Grilo Defendants only seek to -dismiss those claims that are predicated upon their alleged use of allowances to pay for certain work and their failure to report a design error. Indeed , the Grilo Defendants do not dispute that , as the architects on the Howitt Project , they had contractually agreed to review work and to approve contractor payments (Memo of Law , p. 9). Yet , their argument is that they did not breach this duty. In the absence of any evidence to substantiate their claim , this Court disagrees with the Grilo Defendants. That is , while the documentary evidence confirms that the School District ultimately approved the use of the allowances to pay for the sealant , it cannot be overlooked that said jirst approval was only granted once the Grilo Defendants and the Irwin Defendants had approved the invoices for payments and had provided certain assurances to the School District. Indeed , the record demonstrates that all payments authorized by the plaintiff were made pursuant to Application for Payment documents requested by the Irwin Defendants and containing assurances by the Contractor that " to the best of the Contractor s know ledge information and belief the Work covered by this Application for Payment has been completed in accordance with the Contract Documents , that all amounts have been paid by the Contractor for Work for which previous Certificates for Payment were issued and payment received from the Owner , and that current payment shown herein is now due " (See e. g, Irwin Payment Application No. 1 0 dated November 18 2002 , Ex. 39; Irwin Payment Application No. 11 , dated January 17 2003 , Ex. 50). Further , as to the payment of the sealant , the documentary evidence herein again confirms that the Irwin Defendants requested payment by Potential Change Order No. 48 dated December 16 2002 as well as Additional Work Authorization from John Irwin dated December 16 2002 , Ex. 43). That is , the record demonstrates that in submitting an approving the invoices for payments , both , the Grilo Defendants and the Irwin Defendants affirmatively represented to the School District that the moisture concerns at Howitt were the [* 8] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 result of unforseen construction conditions and not as a result of design and/or construction defects and that Christopher Hunt had authorized the use of a water repellant sealant as part of the solution for the water infiltration at the north wall. In seeking summary dismissal of the plaintiff s breach of contract claims , the Grilo Defendants , as the movant herein , are charged with the burden of establishing that they did not improperly approve Irwin s work and payment requests in direct violation of their responsibilties under the contract with the School District. This they have failed to do. Inasmuch as the Grilo Defendants maintain that the plaintiffs employees also had knowledge of and approved the use of the budget allowances to pay for the sealant , this argument is entirely meritless in light of the documents cited above and the written assurances that both , the Irwin Defendants and the Grilo Defendants provided to the School District. Equally meritless is the defendants ' claim that the plaintiffs course of conduct established that it had developed the use of allowances for payment of additional work not contained in the original scope of the contract. First , there is no factual evidence discernable to this Court which substantiates the Grilo Defendants ' claim. Equally unfounded in the record is the Grilo Defendants ' claim that plaintiff had waived the requirement of written change orders for any extra work that needed to be done by expressly approving the work and payments. Further , in moving for summary judgment dismissal of the plaintiffs breach of contract claim , the Grilo Defendants must also establish that they did not breach their duty by failng to report a design error in breach of their contract with the School District. They have failed to establish this as well. The evidence demonstrates that the defendants ' first knowledge of the water infitration occurred in October 2002 when , after several days of rain the several areas of the newly constructed sixth grade wing, including the north wall of the sixth grade wing, the east facing first floor classroom walls were infitrated with water. Specifically, in a letter dated October 14 , 2002 , Samuel Wright of Irwin Contracting, Inc. wrote to Kirco Industries and Nationwide Restoration (the roofing contractor at Howitt), in pertinent part , as follows: Upon completion of wall construction , we have noticed some moisture penetrating the walls in several areas... Over this past weekend , we had several days of raining staring on 10- 10- 02 and continuing through 10- 13- 02. Over the course of this period [* 9] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 of rain , we noticed several areas throughout the building, which were accumulating moisture inside the block walls... particularly... on the north and east elevations... What we wil require is a thorough inspecti 9n of your completed work , i.e. , flashing, weep holes , jointing, etc. to ensure that the items are functioning properly and to rule them out as a cause for this problem... (Plaintiffs Aff. In Opp. , Ex. 23). In response thereto , on October 22 , 2002 , Kirco prepared a response to the Irwin Defendants where Kirco (via its president , Jeffrey Kirchner) memorialized an October 18 2002 walk through with Samuel Wright of the Irwin Defendants which Kirchner states verified "that all flashing, weep holes and workmanship was performed as per plans and specifications " and further informed the Irwin Defendants of his opinion that the infitration at Howitt was due to " no cavity" between the brick and block, i.e. , a design defect on the part of the Grilo Defendants. That is , Kirchner attributed the cause of the water infiltration to the inadequate cavity size. Specifically, Jeffrey Kirchner , in his October 22 , 2002 letter to Irwin Contracting Inc. wrote , in pertinent part as follows: Basically, the north wall seemed to be saturated and partial areas on the east wall. I walked the job and investigated weather (sic) our weep holes were installed or not. All weep holes appeared to be present. On the north wall and areas where there aren windows there are only weep holes on the bottom of the wall as per plans and specifications.. . From past experiences and the way the wall is wet from the top of the wall the rain is penetrating the brick and creeping to the block due to no cavity between the two before the water can get to the weep holes at the bottom. I have experienced these same problems at other jobs... where this no cavity between the block and brick. It is my opinion that all flashings , weep holes and workmanship was performed as per plans and specifications. (Plaintiffs Aff. In Opp. , Ex. 24). Thus , knowing that the mason had claimed that a design defect was to blame for the water infiltration , and acknowledging that they had a contractual duty to inter alia report any design defects , the Grilo Defendants ' claim that they did not breach the contract with the School District when they failed to report this finding, is entirely meritless. As such , the Grilo Defendants ' plaintiffs breach of contract claim is motion for summary judgment dismissing the denied [* 10] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index In it' s no. 002947/06 claim for breach of contract against the general contractor , the Irwin Defendants , the School District claims that the defendants were obligated to provide general contractor services and exercise the duty of care of a general contractor with a high level of experience and expertise in the same or similar circumstances. The School District claims that the Irwin Defendants breached their contract with the School District when they failed properly review designs , plans , specifications, drawings and/or instructions; properly supervise the construction and/or installation of the interior and/or exterior walls of Howitt; properly construct the interior and exterior walls of Howitt; properly select qualified sub contractors including Kirco; ensure the interior and/or exterior walls at Howitt were inter alia: properly prepared and constructed and could properly and adequately prevent water and/or moisture from entering the building; properly and/or fully advise and/or notify the plaintiff during the course of construction of Howitt or thereafter or concerns , defects and/or deficiencies relating to moisture and/or water leaks in the walls at Howitt; and properly perform the general contractor services with respect to Howitt in conformity with the terms of the general contractor contract. Plaintiff claims that as a direct and proximate result of the Irwin Defendants ' breach of the contract , it has sustained extensive damage. In seeking summary dismissal of the plaintiffs breach of contract claim , the Irwin Defendants argue that they constructed the exterior walls of Howitt in accordance with the contract plans and specifications that were developed , prepared and issued by the School District and its design and construction representatives , the Grilo Defendants and Greyhawk. The Irwin Defendants also submit that since the School District's representative , Edward Cullen , and their architectural and engineering representatives , Grilo Defendants and Greyhawk , monitored, supervised and inspected the contract work completed by the Irwin Defendants , and approved and accepted the work in all respects , their claim for breach of contract fails. affidavit of architect Jan Kalas who , in February 2006 , conducted a forensic review of Howitt in order to determine the cause of the water infiltration at the building falls short of presenting a triable issue of fact as against the Irwin Defendants. Kalas ' expert affidavit establishes that the probes and observations at the building disclosed inter alia construction and supervisory defects including mortar filled Plaintiffs reliance on the expert weep tubes , mortar lodged in the drainage cavity, intermittent weep tube spacing, weep holes above the bottom of the drainage cavity, end dam flashing not installed , brick ties not fully engaged , open! cracked brick mortar joints throughout the wall and open roofing seams along [* 11] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 perimeter of the roof above the exterior walls with reported water infitration. However , there is no statement by Kalas , or any other evidence for that matter, that establishes that these defects are so glaring or out of the ordinary that would render the Irwin Defendants liable for improper construction. The Court of Appeals in the Building Co. 239 NY43 , 46 (1924) stated the following: seminal decision in Sheehand Rvan v. Feenev A builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinar prudence would be put upon notice that the work was dangerous and likely to cause injury. There is no evidence that the contractors were not using ordinary care or should have known that the construction of the additions in the manner prescribed by the architectural plans and designs would be dangerous and unsafe. The fact that plaintiff s expert now , in hindsight and upon examination , finds the construction improper and insufficient is not enough to hold the Irwin defendants liable , especially where the plaintiffs expert fails to state that the defects were so readily apparent that the contractor should have known that the building would be (Id). defectively constructed plaintiff s breach of contract claim nonetheless stands against the Irwin Defendants insofar as plaintiff claims that the defendants failed to properly and fully advise and notify the plaintiff during the course of construction of Howitt or thereafter of concerns , defects and deficiencies relating to moisture and water leaks in the walls at Howitt. Clearly, the defendants had agreed to keep the plaintiff apprised of such issues and other progress at Howitt and there is no support for their claim that they failed to discharge this That being said , the burden. The defendants have not established that they did not breach that duty, and clearly the breach caused the plaintiff damage. Thus , plaintiff s claims against the Irwin Defendants for breach of their duty of supervision is legally sufficient. Plaintiff s twelfth cause of action for fraudulent concealment and misrepresentation however fails. In addition to the traditional elements of fraud and misrepresentation , scienter reliance Small v. Lorillard Tobacco Co.. Inc. 94 NY2d 43 (1999)), a plaintiff alleging fraud based upon fraudulent concealment must also establish that the defendants had , i. , and damages [* 12] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index a duty to disclose material information no. 002947/06 (Spencer v. Green 42 AD3d 521 , 522 (2 Dept. T. Bank Cent. Asia v. ABN AMRO Bank N. v. 301 AD2d 373 (1 Dept. 2003)). The duty must be based upon some special relationship between the parties National Union Fire Ins. Co. of Pittsburgh. Pa. v. Red Apple Group 273 AD2d 140 (1 Dept. 2000)). " 2007); the absence of a contractual relationship or a confidential or fiduciary relationship, a part may not recover for fraudulent concealment of fact , since absent such a relationship, there is no duty to disclose 900 Unlimited. Inc. v. MCI Telecom. Corp. 2l5AD2d 227 (Ist Auchincloss v. Allen 211 AD2d 417 (Ist Dept. 1995)). Dept. 1995); Here , plaintiff claims that the defendants all made certain representations to the plaintiff that , due to their special expertise , they knew or should have known were false at the time. Plaintiff claims that the defendants made said representations and non- disclosures with the intent to induce plaintiff s reliance thereon , and that as a direct and proximate result of the improper and inadequately performed defective work by the defendants and the intentional and/or negligent misrepresentations made by the defendants , the plaintiff has sustained damages. Specifically, plaintiff predicates it's fraudulent concealment cause of action upon the allegations that the defendants failed to notify, advise or otherwise inform it of the defects and deficiencies that it discovered or should have discovered in the design , plan , structure installation , and/or construction of the interior and/or exterior walls at Howitt. The School District claims that the defendants fraudulently concealed inter alia the following: that the contract documents that were issued for the project, including the architectural plans and designs , were deficient and contained substantial defects and deficiencies with regard to the waterproofing system of the exterior walls; that the defendants had failed to perform their contract work and were not entitled to receive contract payments for their work; that the defendants had concerns regarding existing water leaks in the walls , which included moisture and water infitration into the north wall; and that the Irwin Defendants did not complete the walls in accordance with the contract plans , specifications and construction documents. . Plaintiff claims that the defendants are liable to it for fraud , largely because the defendants collectively failed to perform their respective contractual duties and obligations to the School District and failed to disclose their breaches of the contract to the School District. Plaintiff claims that the defendants misled the School District into believing that the project was being properly supervised and administered; that the Irwin Defendants were properly performing the construction work in accordance with the contract documents; that the contract designs , specifications , drawings and instruction issued by the Grilo Defendants [* 13] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 and Greyhawk complied with the applicable contract terms and standards; that the Howitt Project was substantially completed in or about April 2003; and that the Irwin Defendants were entitled to receive payments under the construction contract including the final payment. The School District further alleges that it relied upon " the services , acts recommendations , representations , certifications , assurances , expertise and/or advice " of the Defendants , including the Irwin Defendants , in accepting the Howitt Project. The School District also alleges that in 2002 , the defendants became concerned about the moisture and the water leaks in the exterior walls of the project but failed to fully advise the School District of their concerns. Again , in seeking summary dismissal , the Grilo Defendants argue that plaintiff s fraud claim based upon the application of the water sealant to the walls and the use of allowances to pay for certain work must be dismissed because there is no clear and convincing evidence substantiating this claim. Indeed the Grilo Defendants submit that the plaintiff s employees and construction manager knew about the dispute between the contractor and the architect over the cause and responsibilty for the moisture condition that resulted in the use of the sealant , knew that the dispute between the contractor and the architect as to the responsibilty for moisture was never resolved , agreed to accept the application of sealant as a way to resolve the impasse and approved the payment of the sealant by the plaintiff. Similarly, the Grilo Defendants argue that plaintiff's claim for fraud based on the use of allowances to pay for certain work , must be dismissed because the plaintiffs employees and construction manager knew of the reallocation of allowances and approved the expenditures. It is well established that a claim of fraud may not be maintained where the only fraud Benedict Realty Co. v. Citv of New York claimed relates to an alleged breach of contract Lee v. Matarrese 17 AD3d 539 (2 Dept. 2005)), Merely 45 AD3d 713 (2 Dept. 2007); alleging scienter in a cause of action to recover for breach of contract , unless the representations alleged to be false are collateral or extraneous to the agreement, does not Lo v. Curis , 29 AD3d 525 (2 Dept. 2006)). Thus , where , as in this case , the evidence is clear that the only fraud relates to breach of contractual agreements and that also form the basis of a breach of contract claim supra plaintiff is not permitted to recast its breach of contract claim as a Weitz v. Smith 231 AD2d 518 (2nd Dept. 1996)). convert a breach of contract cause of action into one sounding in fraud fraud claim Although a misrepresentation of a material fact which is collateral to the contract but Mendelovitz served as an inducement to enter into it is sufficient to support a fraud claim [* 14] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index v. Cohen 37 AD3d 670 (2 misrepresentation. In this case Dept. 2007)), here there , there is no question no. 002947/06 is no evidence that the of such a School District's alleged fraudulent concealment claim is predicated upon the defendants ' failure to perform its work in accordance with the contract documents and it's purported concealment of its improper performance and alleged contract failures under the contract. Thus , based upon the papers submitted herein , this Court finds that the plaintiffs fraudulent concealment cause of action/fraud cause of action , seeks to do no more than Carle Place Union Free School Dist. v. Bat-Jac enforce the bargain that the parties Const.. Inc. 28 AD3d 596 (2 Dept. 2006)). Accordingly, the Grilo Defendants and the ' struck Irwin Defendants ' separate motions seeking fraud/fraudulent concealment and misrepresentation action are Plaintiffs claims for negligence are also summary dismissal I:ranted of the plaintiff s dismissed Plaintiff claims that the Grilo and Irwin Defendants agreed to provide architectural and general contractor services , respectively, and were obligated to exercise ordinary and reasonable care and skil exercised by architects and general contractors in providing those services. However , plaintiff claims that the defendants violated their duty to the plaintiff and were consequently negligent. Plaintiff claims that as a direct and proximate result of the negligence and carelessness of the defendants , the walls and waterproofing system at Howitt contained and/or developed deficiencies causing the plaintiff damages. As stated above , these claims are also a predicate for the plaintiff s breach of contract claims against said defendants , which , as determined above , withstand their motions for summary judgment. A breach of contract claim does not give rise to a separate cause of action in tort unless the Defendant breached a legal duty that is separate and apart from the Defendants Old Republic National Title Ins. Co. v. Cardinal Abstract Corp. 14 AD3d 678 (2 Muldoon v. Blue Water Pool Services. Inc. 7 AD3d 496 (2 Dept. 2004)). The relationship and the legal obligations between the School District and the architects (the Grilo Defendants) and the general contractor (the Irwin Defendants) is contractual. The obligations of the defendants to the School District is established by their respective contracts and agreements. contractual obligations Dept,2005); Therefore , in the absence of any evidence that the defendants breached a duty other [* 15] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 than one imposed by the contracts with the School District , the Grilo Defendants and the Irwin Defendants ' motions for summary judgment dismissal of the negligence causes of granted action as asserted against them are res ipsa loquitur Similarly, plaintiff s eleventh cause of action for se per and negligence is also dismissed. is an evidentiar rule and does not constitute a separate cause of Prew v. Hospital of Albert (Abbott v. Page Airwavs 23 NY2d 502 Res ipsa loquitur action , 512 (1969); Med. Ctr. 76 AD2d 826 (2 Dept. $instein ColI. of Medicine Div. Of Montefiore Hosp. 1980)). The principle does not state a separate theory on which a plaintiff may recover for injury. Furthermore , without a cause of action for negligence there is no viable cause of (Abbott v. PageAirwavs supra res ipsa loquitur action to which to apply the doctrine of is limited to claims based upon a " violation of a State statute that Ellott v. Citv of New York 95 NY2d 730 , 734 (2001)) that is more than " a standard of reasonableness. " Here , plaintiffs allegation that the defendants had a duty to comply with all necessary laws , codes , and regulations fails to meet that mark. Negligence per se imposes a specific duty" Plaintiffs claim that the 1403. , 2109. defendants violated the New York State Building Code 1.1 , 1404. , 1405. 3 unavailng. Said regulations , and 2105.1 and are therefore negligent albeit at the State level , do not carr per se the weight of a statute per se (Ellott v. Citv of New York such that their violation would constitute negligence supra). Generally, the violation of a rule of an administrative agency such as the Department of State lacks the force and effect of a substantive legislative enactment and therefore does at best , a violation thereof is simply some evidence of not establish negligence negligence per se; Long v. Forest-Fehlhaber Hospital 49 AD2d 581 (2 Mikel v. Flatbush General 55 NY2d 154 (1982); Dept. 1975)). Accordingly, the Grilo Defendants and the IrwinDefendants ' motion for summary judgment dismissing the plaintiffs eleventh cause of action is also I:ranted and the cause of action is dismissed. Plaintiffs claim for punitive damages also fails. (R)ecovery of exemplary damages authorized where only a private wrong and not a public right is involved" in an action for breach of contract is not Cross v. Zvburo [* 16] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 185 AD2d 967 968 (2 Dept. 1992)). Although involving a public entity, namely, the School District , the transaction at issue here was merely a private one between the School District and the defendants. " Allegations of breach of a private agreement, even a breach committed wilfully and without justification , do not establish such wilful fraud or other morally culpable behavior to a degree sufficient to justify a recovery of punitive damages There Merrick v. Four Star Stage Lighting. Inc 60 AD2d 806 (1 Dept. 1978)). (Id). must be proof of more than a mere private wrong There is no evidence that the defendants engaged in such fraudulent , criminal or dishonest acts concerning or affecting the general public , such that the plaintiff would be permitted to recover punitive damages. This action is founded solely upon a private breach of contract. Further, since all of from breach of contract supra and in the absence of any evidence of a fraud committed against the public at large , the plaintiffs claim for punitive damages is herewith dismissed. plaintiffs claims arise Willamson. Picket. Gross. Inc. v. Hirschfeld 92 AD2d 289 Dept. 1983) for the proposition that a wrong against the general public is not a required element of a claim for punitive damages in breach of contract actions in New York is Willamson. Picket Plaintiff s reliance upon misplaced because the First Department abandoned the holding of 1986 in 1986). In Jacobson v. New York Propertv Ins. Underwritin'g Ass 120 AD2d 433 (1 Dept. Jacobson the First Department explicitly held that punitive damages are available in breach of contract actions only if the allegations support a conclusion that a fraud "upon the public at 435). Indeed , the First Willamson. Picket itself acknowledged the prevailng New York rule that "punitive damages are not available for mere breach of contract , for in such a case only a private wrong, and not a public right , is Willamson. Picket. Gross. Inc. v. Hirschfeld supra at 294). " is involved (Id. Deparment in involved" Similarly, plaintiffs reliance upon New York University v. Continental Ins. Co. , 87 NY2d 308 (1995) is also misplaced. There , the Court of Appeals denied punitive damages because the action was grounded on a breach of contract and the plaintiff failed to state any at 321). In arriving at this conclusion , the Court stated: Where a lawsuit has its genesis in the contractual relationship between the parties , the threshold task for a court considering defendant' s motion to dismiss a cause of action for tort outside of the contract (Id. punitive damages is to identify a tort independent of the contract" (Jd. at 316). The Court further noted that " ( a) defendant may be liable in tort when it has breached a duty of [* 17] BOARD OF EDUCATION OF THE FARMINGDALE UFSD Index no. 002947/06 , or when it has engaged in tortious reasonable care distinct from its contractual obligations contractual obligations conduct separate and apart from its failure to fulfill its established above , legally this case is no different. (lei. ' motions for summary Accordingly, the Grilo Defendants and the Irwin Defendants I:ranted . The punitive judgment dismissing plaintiff s punitive damages cause of dismissed action are damages claim is Finally, plaintiffs John A. Grilo , contract , are also separate causes of action against JohnA. Grilo , ArchitectP. C. and Individually as School District Architect for negligence and breach of dismissed first and second causes of action are advanced against the Grilo Plaintiff s third and fourth causes of Defendants including the individual Christopher Hunt. , Architect action on the other hand simply assert the same claims against the John, A. Grilo and fourth the third P . C. and John A. Grilo , Individually as School District Architect; that is , insofar as the claims causes of action are not advanced against Christopher Hunt. However , and are the same , the causes of action arise from the same facts and allege the same damages the parties are the same , plaintiffs third and fourth causes of action are herewith dismissed Dept. 2011); Bruno v. Trus Joist a Weverhaeuser Bus. 87 AD3d 670 (2 Alizio v. Feldman 82 AD3d 804 (2 Dept. 2011)). Notably, plaintiffs as duplicative The parties ' remaining contentions have been considered and do not warrant discussion. denied All applications not specifically addressed are herewith This shall constitute the decision and order of this Court. Dated IJUN 20 2012 ENTERED JUN Z l. NASSAU COUNTY CO CLERK'
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
