Fried v Signe Nielsen Landscape Architect, PC

[*1] Fried v Signe Nielsen Landscape Architect, PC 2012 NY Slip Op 50062(U) Decided on January 19, 2012 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 19, 2012
Supreme Court, Kings County

Iris Fried, as guardian of the person and property of SHLOMIT FRIED, IRIS FRIED, individually, and URI FRIED, Plaintiffs,

against

Signe Nielsen Landscape Architect, PC, HAN-PADRON ASSOCIATES, LLP., HAN-PADRON ASSOCIATES, LLC., HAN-PADRON ASSOCIATES CONSULTING ENGINEERS, PLLC., PADRON ASSOCIATES, INC., Defendants.



28770/02



Plaintiffs were represented by Soledad Rubert, Esq. of Rubert & Gross, P.C. Defendants Han-Padron Associates, LLP, Han-Padron Associates, LLC, Han-Padron Associates Consulting Engineers, PLLC, and Padron Associates, Inc. were represented by Martin A. Schwartzberg, Esq. of L'Abbate, Balkin, Colavita & Contini, L.L.P.

Jack M. Battaglia, J.

On May 11, 2011, after hearing from 16 witnesses over 14 days of trial, the jury rendered its verdict on liability in this personal injury action that arose a decade earlier on July 25, 2001. Plaintiffs and certain defendants now move separately pursuant to CPLR 4404 to set aside aspects of that verdict.

In the afternoon of that July day in 2001, at Pier 4 of the Brooklyn Army Terminal, plaintiff Shlomit Fried, then 16 years old, was operating a Chevrolet Astro minivan owned by the father of a male friend, Nir Yadgar, 19 years old, who was apparently teaching her to drive, when, for reason or reasons unknown, the van left the Pier, and entered Gowanus Bay. Mr. Yadgar was killed; Ms. Fried suffered catastrophic injuries.

Plaintiff Iris Fried, mother and natural guardian of Shlomit Fried, commenced this action in 2002 on behalf of her infant daughter and on her own behalf. When Shlomit Fried became of age, Iris Fried was appointed her incapacitated daughter's guardian ad litem (see CPLR 1201 et seq.), and has since been appointed her guardian pursuant to Article 81 of the Mental Hygiene Law. Shlomit Fried's father, Uri Fried, is also a plaintiff.

Plaintiffs' Second Amended Complaint purports to name 36 different defendants. By the time of trial, the defendants were City of New York (the "City"), New York City Economic Development Corporation ("EDC"); Signe Nielsen Landscape Architect, PC ("Nielsen"); Han-Padron Associates, LLP, Han-Padron Associates, LLC, Han-Padron Associates Consulting Engineers, PLLC, and Padron Associates, Inc. ("Han-Padron" or the "Han-Padron Defendants"); and Iffland Havanagh Waterbury, PLLC, Iffland Kavanaugh & Waterbury PC, Iffland Kavanaugh & Waterbury PC, Inc., and Iffland Kavanaugh Waterbury, PLLC (the "Iffland Kavanagh Defendants"), with the Iffland Kavanagh Defendants only subject to claims asserted by the City and EDC.

On the record on the eighth day of trial, April 25, Plaintiffs settled their claims against the City and EDC for $8.25 million, and the City and EDC settled their claims against the Iffland Kavanaugh Defendants on the latters' contribution to the settlement with Plaintiffs. At the time of the settlement, the Court raised questions about the implications of the settlement for issues arising under General Obligations Law §15-108 and CPLR Article 16, but since none of the parties wanted the questions resolved at that point, the trial continued without resolution, and without the City or EDC. The settlement has since been approved in this Court's Order Approving Settlement, Counsel Fees and Disbursements dated September 13, 2011.

Plaintiffs' fundamental claim at trial was that Pier 4 was negligently designed in that vehicle-resistant barriers were not included at the perimeter, allowing a vehicle to leave the Pier and enter the water. The jury was instructed in accordance with general negligence principles, modified to [*2]reflect that Pier 4 was to be treated as a "highway." (See decision and order of Hon. David I. Schmidt on motions for summary judgment, dated November 30, 2009, at 22-24; decision and order of Hon. David I. Schmidt on motions for leave to renew and reargue, dated November 10, 2010, at 14-16; see also Groninger v Village of Mamaronek, 17 NY3d 125 [2011]; Krausch v Incorporated Village of Shoreham, 87 AD3d 715 [2d Dept 2011].)

Responding to verdict sheet interrogatories, the jury determined that Pier 4 was negligently designed in that vehicle-resistant barriers were not included at the perimeter, and that Han-Padron and EDC were each negligent in not including vehicle-resistant barriers in the design for Pier 4, but that Nielsen was not negligent. The jury also determined that Shlomit Fried was negligent in the operation of the vehicle on Pier 4, and that her negligence was a substantial factor in allowing the vehicle to leave the Pier and enter the water. The City did not appear on the Verdict Sheet, and was not addressed in the charge, as all agreed, at least for these purposes, that the City would be vicariously liable for any negligence by EDC.

The jury also made two allocations of fault, with and without consideration of the fault of Ms. Fried. The jury first determined that EDC was 75% at fault, Ms. Fried 20%, and Han-Padron 5%; and then determined that as between the defendants, EDC was 90% at fault and Han-Padron 10%. Asking the jury to allocate twice was precautionary given the open questions concerning the application of General Obligations Law §15-108 and CPLR Article 16.

The Han-Padron Defendants now move for an order "setting aside the jury verdict, pursuant to CPLR §4404 (a), and granting [them] judgment as a matter of law; or, in the alternative, . . . granting [them] leave to amend [their] Answer responsive to the Second Amended Complaint, pursuant to CPLR 3025 (b), to assert the affirmative defense of set-off, pursuant to General Obligations Law §15-108," as a result of Plaintiffs' settlement with the City and EDC. (Notice of Motion dated September 30, 2011.)

Plaintiffs move for an order, "pursuant to CPLR 4404, for judgment notwithstanding the verdict and declaring [the Han-Padron Defendants] 80% responsible, as a matter of law for damages to be awarded and that Han-Padron is only entitled to a set-off in the amount of $8.25 million," representing the settlement between Plaintiffs and the City and EDC. (Notice of Motion, undated.)

To the extent that the pending motions seek judgment as a matter of law on Han-Padron's negligence and the jury's allocation of fault, the movants bear a heavy burden. "For a court to conclude as a matter of law [pursuant to CPLR 4404 (a)] that a jury verdict is not supported by sufficient evidence, . . . [i]t is necessary first to conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial." (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978].)

"In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every favorable inference which may properly be drawn from the facts [*3]presented, and the facts must be considered in the light most favorable to the nonmovant." (Szazerbish v Pilat, 90 NY2d 553, 556 [1997].) "If there is a question of fact and it would not be utterly irrational for a jury to reach the result it has determined upon . . . the court may not

conclude that the verdict is as a matter of law not supported by the evidence'." (Soto v NY City Transit Auth., 6 NY3d 487, 492 [2006] [quoting Cohen v Hallmark Cards, 45 NY2d at 499].)

Pier 4 is a rectangular structure that extends westward approximately 2/10 mile, i.e., approximately four blocks, from the Brooklyn waterfront into Gowanus Bay, surrounded on three sides by water measuring approximately 22 feet in depth. On July 25, 2001, a parking lot on the top of the pier provided "park and ride" service for a ferry that ran between the pier and lower Manhattan. Also on the top of the pier was an L-shaped pedestrian esplanade, between the parking lot and the edges of the pier on the north and west sides. The esplanade contained benches, lamp posts, and trash receptacles, and was intended for use by the general public for fishing, jogging, and other recreational activities.

The parking lot contained 488 parking spaces, arranged in four parallel rows, with two driving lanes between them. The three sides of the parking lot that abutted the water were surrounded by a 42-inch high fence made of metal. On the north and west edges of the pier, i.e., the edges of the pier that provided the perimeter of the L-shaped esplanade, there was a second identical fence to protect pedestrians from falling into the water. Thus, on these two sides of the pier, there were two fences between the parking lot and the water.

According to eyewitnesses, including a New York City Police Officer, the minivan had been slowly circling the parking lot in the two driving lanes for some time before moving toward the north side of the pier, crashing through the two fences, and entering the water. The van quickly became submerged, and settled in a nose-down position at the bottom of the Bay. Shlomit Fried and Mr. Yadgar were extricated from the van approximately 10 to 15 minutes after it entered the water, and they were taken to a local hospital, where Mr. Yadgar was pronounced dead.

On July 25, 2001, EDC was in possession of Pier 4 pursuant to a Lease with the City, as owner, dated as of February 1, 1986. An old pier had been demolished, and Han-Padron was retained by EDC to design a new pier, including the piling system and concrete deck. Han-Padron retained Nielsen to design the parking lot and pedestrian esplanade. Dennis V. Padron, a principal in the Han-Padron Defendants, testified before the jury, as did Signe Nielsen, the principal in the firm bearing her name.

The jury also heard testimony, either live or by deposition transcript that the parties stipulated could be read, from others involved in the design of Pier 4 - - namely, David Kane and Richard Peterson, representatives of EDC, and Philip Habib, a traffic consultant retained by EDC. Expert testimony was given for Plaintiffs by Nicholas Bellizzi, and for the defendants by Dennis Alfred Guenther and Malcolm McLaren.

The Han-Padron Defendants contend primarily that they are entitled to judgment as a matter [*4]of law because they "did not owe Fried or any other party a duty to design, recommend or

specify vehicle resistant barriers for the Pier." (See Defendants' Affirmation in Support ¶ 27.) In support of this contention, the Han-Padron Defendants argue that Han-Padron "was not contractually obligated to design, recommend or specify vehicle resistant barriers for the Pier," and "did not have a professional obligation to design, recommend or specify the construction of vehicle resistant barriers" (see id. ¶¶ 28, 29); and that Plaintiffs' expert, Nicholas Bellizzi, was not qualified to render an opinion as to any negligence on the part of Han-Padron (see id. ¶¶ 32, 33.)

The Han-Padron-Defendants argue further that Mr. Bellizzi could not rely on provisions of the Roadside Design Guidelines published by the American Association of State Highway and Transportation Officials ("AASHTO Guidelines") or the Highway Design Manual published by the New York State Department of Transportation ("DOT Design Manual") (see id. ¶¶ 30, 31); and that "EDC, rather then [Han-Padron] or Signe Nielsen, made the final determination on what type of barriers were to be constructed on the Pier," having retained Philip Habib to consult on such issues (see id. ¶¶ 34, 35.) Finally, the Han-Padron Defendants contend that, "[i]n light of the jury's determination that Nielsen, which was responsible for designing the barriers along the perimeter of the pier, was not liable, it was against the weight of the evidence for the jury to determine that [Han-Padron] was negligent for not designing vehicle resistant barriers for the Pier." (See id. ¶¶ 37, 38.)

Although the Han-Padron Defendants do not seem to directly challenge the jury's determination that Pier 4 was negligently designed in that vehicle-resistant barriers were not included at the perimeter, the challenge appears implicit in their arguments about the AASHTO Roadside Design Guidelines and the DOT Design Manual. In any event, the jury's determinations as to the negligence of the various defendants, and the evidence at trial that might support them, are better understood in the context of its determination that Pier 4 was negligently designed.

The Court instructed the jury as to general negligence principles, including foreseeability, in accordance with Pattern Jury Instructions 2:10 and 2:12, supplemented as follows:

"Applying these principles to this case, the law requires that roadways be designed, constructed, and maintained so as to be reasonably safe. Pier 4 is considered a roadway for this purpose. In order to recover against Defendants, Plaintiffs must show first that the failure to install vehicle-resistant barriers at the perimeter of Pier 4 was negligent under the circumstances, and that there was no reasonable basis for the failure to do so.

As a general rule, the duty to provide a motorist with a reasonably safe roadway is limited to reasonable safety of those portions of the roadway intended for vehicular use. There is an exception, however, where there is a roadside hazard so inherently dangerous that there is a duty to prevent vehicles from leaving the roadway or, if they do, to eliminate the danger.

In considering these issues, you should consider the likelihood of injury and the seriousness [*5]of injury if it occurs, weighed against the means available to eliminate or reduce the likelihood of injury and the difficulties and costs, monetary and otherwise, of using those means.

If you decide that Pier 4 was not negligently designed in that vehicle-resistant barriers were not included at the perimeter, you will answer "NO" to Question No. 1, and proceed no further. If you decide that Pier 4 was negligently designed in that vehicle-resistant barriers were not included at the perimeter, you will answer "YES" to Question No. 1, and proceed to consider whether either Defendant Signe Nielsen or Defendant Han-Padron, or both, were negligent in not including vehicle-resistant barriers in the design for Pier 4. As I told you during the trial, EDC is no longer a Defendant in this case. Nevertheless, you must also consider whether EDC was negligent in not including vehicle-resistant barriers in the design for Pier 4."

This instruction reflects well-established principles applicable to alleged negligence in the design of a roadway, and, in particular, the failure to provide an adequate guardrail. (See Gomez v New York State Thruway Auth., 73 NY2d 724, 725 [1988]; Ferguson v Sheahan, 71 AD3d 1207, 1208 [3d Dept 2010]; Popolizio v County of Schenectady, 62 AD3d 1181, 1182-83 [3d Dept 2009]; Soto v City of New York, 63 AD3d 1035, 1036-37 [2d Dept 2009]; Hill v Town of Reading, 18 AD3d 913, 915-16 [3d Dept 2005]; Temple v Chenango County, 228 AD2d 938, 938-40 [3d Dept 1996]; Segnit v State, 148 AD2d 519, 519-20 [2d Dept 1989]; Van Son v State, 116 AD2d 1013, 1014-15 [4th Dept 1986].)

Plaintiffs have maintained throughout that the AASHTO Guidelines and DOT Design Manual necessarily applied to the design of Pier 4 because the pier was a "highway." The Court has, just as consistently, disagreed. (See Cave v Town of Galen, 23 AD3d 1108, 1108-09 [4th Dept 2005].) Rather, the Court advised the parties that applicability of the AASHTO Guidelines or DOT Design Manual, or both, would be treated as a question of fact, presumably determined by the jury after hearing from both fact and expert witnesses. (See Hill v Town of Reading, 18 AD3d at 916 [Kane, J., concurring].) This approach was reflected in the Court's charge to the jury, which included Pattern Jury Instruction 2:16, addressing custom and practice as some evidence of negligence, modified to refer to the AASHTO Guidelines and DOT Design Manual should the jury find that one or both reflected custom and practice with respect to the placement of vehicle-resistant barriers.

The Han-Padron Defendants are correct that, "absent proof that a particular guideline or recommendation has been adopted in actual practice, it cannot be held to impose a heightened standard of care upon defendants." (See Defendants' Affirmation in Support ¶ 30; Carrasquillo v City of New York, 78 AD3d 635, 637-38 [2d Dept 2010]; Jahier v Jahier, 50 AD3d 966, 968 [2d Dept 2008]; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 386 [2d Dept 2003].) The jury was instructed in accordance with these principles, after having heard and seen a substantial amount of evidence, supported by expert opinion, as to custom and practice with respect to the use of vehicle-resistant barriers on piers.

Even absent the AASHTO Guidelines or DOT Design Manual, moreover, there was sufficient evidence to support the finding that Pier 4 was negligently designed in that vehicle-[*6]resistant barriers were not included at the perimeter. It may well have struck the jury, after hearing hours of testimony by EDC project managers, Mr. Habib, Mr. Padron, and Ms. Nielsen, concerning a process of planning and design of Pier 4 over more than three years, that virtually no attention was given to the risk that one of the several hundred vehicles expected to use the pier on any given day might, because of weather, collision emergency, or just negligence, leave the pier and enter the water. The deficiency was highlighted by the amount of testimony elicited with respect to the single record of any such consideration, i.e., Mr. Habib's June 24, 1993 Memorandum with the "suggestion[ ]," "Barriers at the ends/edges of the pier." There was simply no evidence at trial of any study or deliberative process addressed to the risk of a vehicle leaving the pier. (See Weiss v Fote, 7 NY2d 579, 588-89 [1960]; Kuhland v City of New York, 81 AD3d 786, 787 [2d Dept 2011]; Carillo v County of Rockland, 11 AD3d 575, 576 [2d Dept 2004].)

None of which, in itself, says that Han-Padron is liable for injury resulting from the negligent failure to place vehicle-resistant barriers at the perimeter of Pier 4. As noted above, the Han-Padron Defendants contend that Han-Padron "did not owe Fried or any other party a duty to design, recommend or specify vehicle resistant barriers" (see Defendants' Affirmation in Support ¶¶ 28, 29.) Although in an accompanying memorandum of law, the Han-Padron Defendants cite controlling caselaw on the existence of an alleged tortfeasor's duty to an injured plaintiff (see Espinal v Melville Snow Contrs. Inc., 98 NY2d 136 [2002]; Palka v Servicemaster Mgt. Svcs. Corp., 83 NY2d 579 [1994]; Purdy v Public Adm'r of County of Westchester, 72 NY2d 1 [1988]; H.R. Moch Co. v Rennselear Water Co., 247 NY 160 [1928]), they do not cite the authority most directly on point, Church v Callanan Indus. (99 NY2d 104 [2002]), nor do they address the bases of duty articulated in the caselaw with reference to the evidence at trial.

In Church v Callanan Indus. (99 NY2d 104), the vehicle in which the infant plaintiff was a passenger veered off a highway, "careened down a nontraversable embankment and crashed in a V-shaped ditch at the bottom" (id. at 109.) The plaintiffs sued the general contractor on a recently-completed highway "resurfacing and safety improving project" (see id.); theconstruction engineering firm retained by the Thruway Authority to inspect and supervise the general contractor's compliance with the contract plans and specifications; and the subcontractor retained to install a guiderail system called for by the contract. "The gravamen of the action was both the negligent failure to complete the full 312.5 feet of new guiderailing called for by the . . . general contract and the . . . subcontract, and [the construction engineering firm's] negligent inspection and approval of the installation despite such noncompletion." (Id. at 109-10.) The plaintiffs contended that "had the guiderailing been completed in accordance with the . . . contracts, the [vehicle] would have been prevented from plunging down the embankment and crashing at the bottom, thereby causing the infant plaintiff's serious injuries." (Id. at 110.)

During the pendency of the appeals, the plaintiffs settled the claims against the general contractor and the construction engineering firm, and the question before the Court of Appeals was the propriety of summary judgment dismissal of the action against the subcontractor. Determining that the "threshold and dispositive question" was "whether [the subcontractor] owed the infant plaintiff a duty of care" (see id. at 110), the court set out the governing principles, as follows: [*7]

"The existence and scope of a duty of care is a question of law for the courts entailing the consideration of relevant policy factors . . .

[O]rdinarily, breach of a contractual obligation will not be sufficient in and of itself to impose tort liability to noncontracting third parties upon the promisor . . . Our cases have nevertheless thus far identified three sets of circumstances, as exceptions to the general rule, in which a duty of care to noncontracting party may arise out of a contractual obligation or the performance thereof. In such cases, the promisor is subject to tort liability for failing to exercise due care in the execution of the contract. The first is where the promisor, while engaged affirmatively in discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk . . .

The second set of circumstances giving rise to a promisor's tort liability is where the plaintiff has suffered injury as a result of reasonable reliance upon the defendant's continuing performance of a contractual obligation . . .

Third, we have imposed tort liability upon a promisor where the contracting party has entirely displaced the other party's duty to maintain the premises safely . . . In contrast to the first exception, the promisor under such circumstances may indeed be liable for failing to make conditions safer for the injured party." (Id. at 110-12 [internal quotation marks and citations omitted.)

The Court of Appeals concluded that none of the three exceptions applied to the plaintiffs' claim against the subcontractor. As to the second exception, i.e., detrimental reliance, the court simply stated that it was not, and could not be, contended in the case before it. The same must be said as to this action.

With respect to the first exception, the Court of Appeals found "no evidence in the record that [the subcontractor's] incomplete performance of its contractual duty to install 312.5 feet of guiderailing . . . created or increased the risk of [the vehicle's] divergence from the roadway beyond the risk which existed before [the subcontractor] entered into any contractual undertaking." (See id. at 112.) The subcontractor's "failure to install the additional length of guiderail did nothing more than neglect to make the highway . . . safer, - - as opposed to less safe - - than it was before the repaving and safety improvement project began." (Id.)

As to the final exception, the Court of Appeals concluded that the subcontractor "did not comprehensively contract to assume all of the Thruway Authority's safety-related obligations with respect to the guiderail system." (Id. at 113.) "Instead, the Thruway Authority retained a separate project engineer to provide inspection and supervision of all aspects of the project, including contract compliance with respect to the stipulated length of the guiderail system." (Id.) The subcontractor's contract was contrasted with that of the general contractor, in which the general contractor "assumed significant obligations to assure that the construction complied with the project specifications and that such work was completed in a timely fashion, thus inferably undertaking an obligation to inspect and oversee all aspects of the subcontractor's work." (See id. at 114.) [*8]

Since Church, the Court of Appeals has not returned to the question of a contractor's tort duty to a noncontracting party where the latter has been injured as a result of alleged negligence in the design or construction of a roadway, building, or other structure. In Stiver v Good & Fair Carting & Moving, Inc. (9 NY3d 253 [2007]), the Court rejected a claim against a mechanic who allegedly was negligent in safety inspection of a motor vehicle, because the mechanic "cannot be said to have launched an instrument of harm since there is no reason to believe that the inspection made [the] vehicle less safe than it was beforehand" (see id. at 257.) "Inspecting the car did not created or exacerbate a dangerous condition." (Id.)

Looking, then, at the "create or exacerbate" basis of duty, the Court notes in the first instance that the Court of Appeals decision in Church does not itself resolve the question of duty here. In Church, the roadway, and the danger presented by the adjacent embankment and ditch to the occupant of a vehicle that might leave the roadway, existed before the subcontractor undertook the contractual obligation to install guiderailing. Here, although the nature of the alleged negligence is substantially similar, the "roadway" here, i.e., the pier and parking lot, were designed by engineer Han-Padron or its subcontractor, architect Nielsen.

Church is consistent with long-standing authority, not framed in terms of duty, holding that "a contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk" (see Minier v City of New York, 85 AD3d 1134, 1134-35 [2d Dept 2011] [emphasis added]; see also Brown v Welsbach Corp., 301 NY 202, 205 [1950]; Gurriell v Town of Huntington, 129 AD2d 768, 770 [2d Dept 1987]), and authority holding that "[a]n engineer . . . retained to assure compliance with specifications, is not liable for injuries to a member of the general public unless the engineer commits an affirmative act of negligence or such liability is clearly imposed by contract" (see Fecht v City of New York, 244 AD2d 315, 315 [2d Dept 1997] [emphasis added]; see also Turnmire v Concrete Applied Tech. Corp., 56 AD3d 1125, 1127 [4th Dept 2008]; D'Andria v County of Suffolk, 112 AD2d 397, 399 [2d Dept 1985] ["active malfeasance"].)

Opinions in roadway and sidewalk cases subsequent to Church now cast the question in terms of "create or exacerbate" or "launching an instrument of harm" (see, for example, Anastasio v Berry Complex, LLC, 82 AD3d 808, 809 [2d Dept 2011]; Hill v Fence Man, Inc., 78 AD3d 1002, 1005 [2d Dept 2010]; Golisano v Keller Constr. Co., Inc., 74 AD3d 1915, 1916 [4th Dept 2010]; Laap v Francis, 54 AD3d 1006, 1007 [2d Dept 2008]); although an opinion will add the gloss of "affirmative act of negligence" (see Turnmire v Concrete Applied Tech. Corp., 56 AD3d at 1127.)

Distinguishing conduct as either "act" or "omission," or "malfeasance" rather that "nonfeasance," invites creative use of language, since most conduct can probably be described as one or the other. The Court of Appeals has recognized that the distinction between "[n]onfeasance (or failure to perform a duty)" and "misfeasance (or defective performance)" "is largely semantic and often illogical - - negligent performance may be a result of failing to act as well as doing an affirmative act improperly." (See Sommer v Federal Signal Corp., 79 NY2d 540, 552 [1992].) [*9]

Nonetheless, where courts refuse to recognize duty pursuant to the "create or exacerbate"/"launching an instrument of harm" authority, the conduct will often be described as the "failure" to do something that would allegedly have avoided the harm. (See Izzo v Proto Constr. & Dev. Corp., 81 AD3d 898, 899 [2d Dept 2011] ["failure to use sealant"]; LeMoy v MH Contrs. LLC, 78 AD3d 1311, 1314 [3d Dept 2010] ["failure to use a particular type or number of fasteners or ledgers"]; Bauerlein v Salvation Army, 74 AD3d 851, 856 [2d Dept 2010] ["failure to discover the U-bolts"]; Vignapiano v Herbert Constr. Co., 46 AD3d 544, 545 [2d Dept 2007] ["nonfeasance in failing to discover the alleged defect"]; Periera v New York City Housing Authority, 247 AD2d 455, 455 [2d Dept 1998] ["failing to either insulate or build a guard around the steam riser"].)

Surprisingly perhaps, there are relatively few post-Church appellate court decisions that addresses the duty of contractors to noncontracting parties where negligence in design or construction of a sidewalk or roadway is alleged to cause personal injury to a member of the public (as opposed to an employee at the construction site.) The decision of the First Department in Davies v Ferentini (79 AD3d 528 [1st Dept 2010]) is most directly on point. The appellate court opinion gives few underlying facts, but more may be gleaned from the opinion of the motion court (see Davies v Ferentini, 2010 NY Slip Op 30263 [U] [Sup Ct, NY County 2010].)

The motor vehicle accident occurred at an intersection on Route 9A. Defendant Home Depot USA, Inc. ("Home Depot") was constructing a store on land adjacent to the highway. Before the construction of the Home Depot store, there was a continuous guide rail abutting the highway in the vicinity of the accident site. But to allow construction vehicles to enter the construction site, a temporary access road had to be built, which required cutting the guide rail. Defendant Shawn's Lawns, Inc. ("Shawn's Lawn"), an excavation contractor retained by the general contractor on the Home Depot construction site, was directed by the latter to cut the guide rail.

The plaintiff's vehicle was involved in a collision with another motor vehicle; the plaintiff's vehicle hit the guide rail, and flipped over the rail onto its roof. The plaintiffs alleged that the defendants were negligent "in failing to install a type I end assembly box beam guide rail to the blunt ends of the guide rail after the guide rail was cut to allow temporary access to the construction site"; "[i]nstead, type II end assemblies were installed." (See Davies v Ferentini, 79 AD3d at 529.) "According to plaintiffs, type I end assemblies would have prevented plaintiff's vehicle from flipping over and landing on its roof." (Id.)

The First Department addressed the motions for summary judgment dismissal made by three defendants: Home Depot, Shawn's Lawn, and John Meyer Consulting, Planning, Engineering, Landscape, Architecture and Land Surveying, P.C. ("JMC.") Neither the First Department's opinion nor the motion court's opinion specifically describes JMC's roles or responsibilities on the Home Depot construction project, but the First Department opinion characterizes JMC as "the engineer on the Home Depot project" "to provide engineering consulting services" (see id. at 529, 530.)

As to Home Depot, the First Department held that the evidence submitted by the plaintiffs did not show that Home Depot "participated in the decision-making process concerning the type II [*10]end assemblies" (see id), and that Home Depot was properly granted summary judgment dismissing the complaint as against it. The court cited its earlier decision in Estate of Hamzavi v Dewberry-Goodkind, Inc. (24 AD3d 184 [1st Dept 2005), an action for personal injuries and wrongful death "against an engineering firm for negligent design and installation of a highway guide rail" (id.) In its one-paragraph opinion in that case, the court held that "[p]laintiff's claim that defendant failed to design a proper guide rail at the location of plaintiff's decedent's accident was properly dismissed for lack of a substantial basis to believe that the guide rail was designed by defendant." (See id.) The only authority cited was CPLR 3212 (i), which sets forth "[s]tandards for summary judgment in certain cases involving licensed architects, engineers, land surveyors or landscape architects."

As to Shawn's Lawns, that defendant "had no role in the selection of the type II end assemblies"; the New York State Department of Transportation ("DOT") "selected the type II end assemblies and approved of their installation"; and "the type II end assemblies were properly installed pursuant to the DOT's specifications." (See id. at 529-30.) "Shawn's Lawn fulfilled its contract and did not launch a force or instrument of harm." (Id.) Here, the First Department cited one of the pre-Church duty cases, Espinal v Melville Snow Constrs. (98 NY2d 136), and the Third Department's decision in Luby v Rotterdam Sq., L.P. (47 AD3d 1053 [3d Dept 2008].) In Luby, the court held that, since construction of a "handicapped ramp" at a mall "conformed to the architectural drawings implemented under the direction of [the architect], and with [the architect] and the Town having inspected and approved [the contractor's] work after its completion, [the court could not] conclude that . . . [the contractor's] construction of such ramp rose to the requisite standard of creating a dangerous condition so as to launch a force or instrument of harm." (Id. at 1055 [citations and internal brackets and quotation marks omitted].) The Luby court relied on Espinal, and on its own prior decision in Dennebaum v Rotterdam Sq. (6 AD3d 1045 [3d Dept 2004].)

Again to Davies v Ferentini (79 AD3d 528), as to defendant JMC, "the engineer on the Home Depot project" (id. at 529), "[w]ith regard to the threshold issue as to whether JMC owed a duty to plaintiffs, . . . the actions of JMC, in providing construction drawings calling for the installation of the type II end assemblies pursuant to the DOT's directives, review, inspection and approval, do not rise to the requisite standard of creating a dangerous condition so as to be deemed to have launched a force or instrument of harm"; "JMC had no control over the type of end assemblies that would ultimately be installed." (See id. at 530 [citing Church v Callahan Indus., 99 NY2d 104, and Estate of Hamzavi, 24 AD3d 184.)

A fair reading of Davies v Ferentini (79 AD3d 528), Luby v Rotterdam Sq. L.P. (47 AD3d 1053), and Estate of Hamzavi v Dewberry-Goodkind (24 AD3d 184) is that the conclusion(s) in the respective opinions that the contractor(s) did not owe a duty to the general public was based not on a determination that an "instrument of harm" had not been "launched," but that the particular party or parties had not done the "launching." In other words, the courts focused primarily, as perhaps most appropriately where the question is duty, on the roles and responsibilities of the contractor, rather than on the allegedly negligent conduct. An arguable exception would be the Third Department's decision in Dennebaum v Rotterdam Sq. (6 AD3d 1045), in which the court held that "the failure to use a particular type of joint in sidewalk construction, resulting in an uneven contour [*11]13 years after construction, is hardly the creation or exacerbation of a dangerous condition or the launching of a force or instrument of harm" (see id. at 1046 [citation and internal brackets and quotation marks omitted].)

The clear implication, moreover, of the Davies, Luby, and Hamzavi opinions is that, had the requisite "participation" and "control" been established, a duty would have been found. Particularly where, as here, the roadway, sidewalk, or other dangerously-designed structure did not exist before the contractor's undertaking, it is difficult to say that the contractor "did nothing more than neglect to make the [structure] safer - - as opposed to less safe - - than it was before the . . . project began" (see Church v Callahan Indus., 99 NY2d at 114.)

The conclusion that, given the requisite degree of "participation" and "control," an engineer will be deemed to owe a duty to the general public to use reasonable care in the design of a roadway is consistent with, if not compelled by, the law on the tort liability of architects. Until relatively recently (see Cubito v Kreisberg, 69 AD2d 738, 745 [2d Dept 1979], aff'd 51 NY2d 900, 902 [1980]), an architect could be liable in tort for injury resulting from defective design only for "the presence of a latent defect or danger not generally known" (see Inman v Binghamton Housing Auth., 3 NY2d 137, 145 [1957].) "[T]he absence of safety railings [could not] be considered either a latent defect or a hidden danger." (See Sofia v Carlucci, 122 AD2d 263 [2d Dept 1986].)

Following development of the law of product liability, and the abandonment of privity as a condition to the liability of a manufacturer to a remote user, "the liability of an architect must . . . be treated under the same tests . . . applied toward an industrial manufacturer"; "[t]hat is to say, the test of patent or latent defect is not to be applied, and the question of liability depends rather on whether the architect exercised due care in preparing his plans." (See Cubito v Kriesberg, 69 AD2d at 745.) An architect must "use[ ] the degree of care in design that a reasonably prudent architect would use to avoid an unreasonable risk of harm to anyone likely to be exposed to the danger." (See Richards v Passarelli, 77 AD3d 905, 909 [2d Dept 2010].)

Liability for defective design has not been limited to architects. "[I]n order to prove negligence or malpractice in the design of a structure, the plaintiff must put forth expert testimony that the engineer or architect deviated from accepted industry standards." (Columbus v Smith & Mahoney, P.C., 259 AD2d 857, 858 [3d Dept 1999].) The liability of a subcontractor that constructed a scaffold shed "may be predicated upon its erection of a defective or dangerous structure built upon real property owned by another." (See Phillips v Seril, 209 AD2d 496, 496 [2d Dept 1994].) These principles apply to the design and construction of parking lots, sidewalks, and other public rights of way. (See Richards v Passarelli, 77 AD3d 905; Amazon v British Am. Dev. Corp., 216 AD2d 702 [3d Dept 1995]; Shilling Warwick Constr., 193 AD2d 594 [2d Dept 1993].)

There is little in the decided cases on the nature and extent of a contractor's roles and responsibilities with respect to a negligent design that will warrant a determination that the contractor owed a duty to the general public to use reasonable care in the design. It seems certain, however, that the nature and extent of the "participation" and "control" required for a determination [*12]of duty on the "create or exacerbate" basis is not the same as required for a determination of duty "where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (see Church v Callahan Indus., 99 NY2d at 112 [quoting Espinal v Melville Snow Contrs., Inc., 98 NY2d at 140].)D

As applied in Church, the court concluded that the subcontractor "did not comprehensively contract to assume all of the Thruway Authority's safety-related obligations with respect to the guiderail system." (See id. at 113.) The court contrasted the subcontractor's contract with that of the general contractor, finding that the general contractor "assumed significant obligations to assure that the construction complied with the proper specifications . . . inferably undertaking an obligation to inspect and oversee all aspects of the subcontractor's work." (See id. at 114.) If the roles and responsibilities of the contractor are not sufficient to warrant a determination of duty under the "create or exacerbate" basis, they would not qualify for a determination of duty on the "entirely displaced" basis.

Here, there was substantial evidence at trial, both before and after the City and EDC left the courtroom after their settlement with Plaintiffs, concerning the respective roles and responsibilities of EDC project managers David Kane and Richard Peterson, transportation engineer Philip Habib, engineer Han-Padron, and architect Nielsen in the design of Pier 4. Having determined that Nielsen was not negligent in not including vehicle-resistant barriers in the design for Pier 4, the jury determined that, as between the City and EDC on the one hand, and Han-Padron on the other, Han-Padron bore 10% of the fault. Although it is clear that the determination as to the existence and scope of a duty of care is for the court (see Church v Callahan Indus., 99 NY2d at 110-11), the determination has factual bases. The Court sees no reason why it may not rely on relevant jury findings, so long as they are substantially supported by the evidence.

Pursuant to its contract with EDC, Han-Padron designed the concrete deck and substructure (including the pilings that support the deck) for Pier 4. Han-Padron retained Nielsen to design "everything above the concrete deck," including the "architectural finishes, public access and parking layout" for the pier. (See Defendants' Affirmation in Support ¶¶ 10, 13.) Nielsen initially suggested the Orsogril fencing among other alternatives. The fencing was designed for pedestrian safety only, and not to resist vehicular impact, and the evidence at trial was that the fencing could not withstand vehicular impact at a speed greater than six (6) m/p/h. Han-Padron contends that it "was only vicariously responsible for the acts of its subconsultant." (See id. ¶38.)

The Han-Padron Defendants contend that "EDC made the final determination on what type of barriers were to be constructed on the Pier," relying on Philip Habib, the traffic engineering consultant EDC separately retained, and that "Habib was responsible for addressing any issues he detected with respect to vehicular safety." (See id. ¶¶ 12, 14.) To support these contentions, the Han-Padron Defendants rely on the trial testimony of engineer Dennis V. Patron and landscape architect Signe Nielsen. The most significant of the cited testimony, however, does not establish the contentions even assuming that, if established, they would require a conclusion of no duty as to Han-Padron. [*13]

Mr. Padron testified in response to his own counsel's question, "Who had the final say as to what was put on that pier?," "Client always has the final say: EDC." Ms. Nielsen testified to meetings held during the design phase of the project, attended by representatives of EDC, Han-Padron, and Nielsen, at which "we were told to use waterfront zoning as the criteria" for the fences that would be put on the pier." The reference was to a zoning resolution of the City Planning Commission, Special Regulations Applying in the Waterfront Arena ("Waterfront Regulations.") In other discussions with EDC about barriers that would be placed at the edges of the pier, "it always went back to what waterfront suggested, required, that we place there." Ms. Nielsen "was not directed by anyone to design a barrier that would stop a vehicle"; "if Mr. Habib had felt there was a problem with vehicular safety . . . , [she] would have expected that he would have spoken up about that matter"; "[t]hat was his job."

In their reply to Plaintiffs' opposition, the Han-Padron Defendants point to the testimony of Richard Peterson, EDC's project manager during the design phase of the Pier 4 project. Mr. Peterson selected the "design team," whom he identified as including only Han-Padron and "a landscape architect to do work on the surface of the pier," and who met at least 10 and perhaps as many as 20 times. Mr. Peterson could not remember "having any discussion with any of the design team concerning safety involving vehicles that might come onto the pier in any respect." When asked whether so-called "jersey barriers," i.e., a type of vehicle-resistant barrier, would have "been in compliance with the waterfront zoning guidelines," he responded that he did not "think" the Department of City Planning "would be thrilled with jersey barriers, no," because "[t]hey are not transparent."

The Waterfront Regulations were a significant issue at trial, because of the contention, initially by Ms. Nielsen at least, that the Regulations prohibited vehicle-resistant barriers. The evidence at trial, however, was that subsequent to Ms. Fried's accident, jersey barriers were installed around the perimeter of Pier 4, and no explanation was provided, such as a change in the Waterfront Regulations, as to the apparent permissibility of jersey barriers at the later time when they were allegedly impermissible earlier. This evidence was introduced, not as evidence of negligence in the failure to design the pier with vehicle-resistant barriers, but as evidence that, despite the contention to the contrary, vehicle-resistant barriers would have been permitted. (See Cover v Cohen, 61 NY2d 261, 270 [1984].) Indeed, by the end of trial, both Ms. Nielsen and Mr. Padron conceded that some type of vehicle-resistant barrier could have been included in the design for Pier 4 without violating the Waterfront Regulations.

To the extent, therefore, that EDC directed that the design comply with the Waterfront Regulations, EDC did not direct that the Orsogril fence be used, or that there be no vehicle-resistant barriers. There is nothing in Mr. Peterson's testimony or elsewhere in the record to establish a direction by EDC that would have precluded a design that included vehicle-resistant barriers around the perimeter of Pier 4.

As for EDC's right to approve or disapprove the design, in opposition Plaintiffs point to the following testimony of Mr. Padron: "Normally with the type of work that my firm does the client [*14]doesn't have the internal expertise to thoroughly review it"; "[t]hey rely on us." Mr. Padron also acknowledged that Han-Padron itself reviewed and approved the "barrier drawings" for Pier 4. Here, putting aside for the moment Philip Habib (who was not identified by Mr. Padron as part of the "design team"), the Han-Padron Defendants cite to no evidence that EDC did not in fact rely on Han-Padron for design decisions. That the contract between EDC and Han-Padron does not explicitly refer to vehicle-resistant barriers or transportation engineering services does not establish that EDC did not rely on Han-Padron to design a pier, parking lot and pedestrian esplanade that was reasonably safe for motorists and pedestrians.

Nor does EDC's approval in fact change the result. "A contractor is not absolved from liability to a third party for injuries occurring after the work is completed even when the owners accepts the work as completed." (English v City of Albany, 235 AD2d 977, 978-79 [3d Dept 1997]; see also Brown v Welsbach Corp., 301 NY at 205; Murphy v Omen Constr. Co., Inc., 242 AD2d 964, 966 [4th Dept 1997].) Although a contractor "is justified in relying upon the plans and specifications which he contracted to follow" (Ryan v Feeney & Sheehan Bldg. Co., 239 NY 43, 46 [1924]), the contractor may yet be liable for resulting injuries if the plans are "so patently defective as to place a contractor of ordinary prudence on notice that the project, if completed according to the plans, is potentially dangerous" (see Hartofil v McCourt & Trudden Funeral Home, Inc., 57 AD3d 943, 945 [2d Dept 2008] [quoting West v City of Troy, 231 AD2d 825, 826 [3d Dept 1996].)

As to Mr. Habib, in opposition Plaintiffs cite to certain of his testimony at trial. Mr. Habib testified that the reference in his June 24, 1993 memorandum, which he characterized as a "very early planning level document," to "barriers at the ends/edges of the pier," meant vehicle-resistant barriers. Consistent with Mr. Peterson's testimony, Mr. Habib did not consider himself a member of the "design team." Most importantly, Mr. Habib testified that he did not have "any input into the final determination as to what barriers were to be placed around this pier"; that he did not have "anything to do with the designing of the fences that were put on the pier"; that he had not, in 1993 or since, "seen any documents concerning the fence or type of fence that was going to be put up at Pier 4"; and that he did not recall that "anyone ever transmit[ted] any of the plan sketches of the fences" to him.

The Han-Padron Defendants may be correct that "[a]s the sole transportation engineer retained in connection with the reconstruction of the Pier, Habib was most qualified to determine whether vehicle resistant barriers should have been erected" (see Reply Affirmation ¶ 9.) But there is insufficient evidence that his roles and responsibilities on the Pier 4 project included a determination of the type of barrier, if any, that was to be placed at the perimeter of Pier 4, or that EDC relied on him to make that determination.

The Court concludes that the roles and responsibilities of Han-Padron in the design of the parking lot and pedestrian esplanade at Pier 4 were of such a nature and extent that Han-Padron owed a duty to motorists and pedestrians to use reasonable care in the design so as not to expose them to an unreasonable risk of foreseeable harm. Although the jury's assessment of Han-Padron's fault at 10% (as compared to EDC) is relatively small, the Court's qualitative assessment, in addition [*15]to the jury's quantitative one, sufficiently supports the conclusion.

On the question of breach of duty, the Court instructed the jury in accordance with the professional standard of care reflected in Pattern Jury Instruction 2:15, and the relevance of custom and practice as reflected in Pattern Jury Instruction 2:16. Except as addressed above, the Han-Padron Defendants do not directly challenge the jury's determination that Han-Padron was negligent in not including vehicle-resistant barriers in the design for Pier 4. Rather, the Han-Padron Defendants contend that "the jury had no valid reason to afford any weight to [the testimony of Plaintiffs' expert] Nicholas Bellizzi with respect to [Han-Padron] since Bellizzi did not possess the experience and specialized knowledge to offer such testimony"; and that "the Second Department has consistently held that the opinions of licensed engineers who do not possess specialized knowledge, experience, training or education with respect to the subject of their opinions are not reliable and consequently should not be considered." (See Defendants' Affirmation in Support ¶ 32.)

"Where a factual issue transcends the realm of knowledge that lay persons possess', expert testimony is required." Viacom Intl. v Midtown Realty Co., 193 AD2d 45, 55 [1st Dept 1993] [quoting Rosen v Salem Truck Leasing, 108 AD2d 907, 907 [2d Dept 1985]; see also Mariano v Schuylerville Cent. Sch. Dist., 309 AD2d 1116, 1118 [3d Dept 2003].) Expert testimony is generally required to establish a breach of the professional standard of care owed by an engineer (see Travelers Indem. Co. v Zeff Design, 60 AD3d 453, 455 [1st Dept 2009]; Dennehy v LaRuffa & Duncan, 36 AD3d 848, 848 [2d Dept 2007]); or an architect (see 530 E. 89 Corp. v Ungar, 43 NY2d 776, 777 [1977]; Talon Air Servs. LLC v CMA Design Studio, P.C. 86 AD3d 511, 515 [1st Dept 2011]; Tower Bldg. Restoration v 20 E. 9th St. Apt. Corp., 7 AD3d 407, 408 [1st Dept 2004].)

On the other hand, where "assessments [do] not depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence,' there [is] no occasion to resort to the knowledge of men whose experience or study enables them to speak with authority'." (See Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140, 148 [1976] [quoting Dougherty v Milliken, 163 NY 527, 533 (1900)].) Expert testimony is only required where there is "inability or incompetence of jurors, on the basis of their day-to-day experience and observation, to comprehend the issues, [or] evaluate the evidence." (See id.; see also Miron v TBV, Inc., 76 AD3d 144, 158 [2d Dept 2010]; White v Mhatre, 283 AD2d 573, 574 [2d Dept 2001].)

One could argue, without concern for sanctions (see Rules of Chief Administrator, 22 NYCRR Part 130), that professional knowledge was unnecessary for a jury to determine that the Pier 4 parking lot presented a foreseeable risk that a vehicle would leave the pier; that a fence designed to resist an impact of only six (6) m/p/h was insufficient to protect against that risk; and that the failure to include vehicle-resistant barriers at the perimeter constituted a lack of reasonable care, particularly in light of the acknowledgment of both Dennis Padron and Signe Nielsen that some such barriers could have been included. Even medical malpractice can occasionally be proved without expert testimony. (See States v Lourdes Hosp., 100 NY2d 208, 210 [2003]; Kambat v St. Francis Hosp., 89 NY2d 489, 496 [1997].) Plaintiffs, however, make no such argument. [*16]

The Han-Padron Defendants cite a number of Second Department decisions that reject the opinion of a licensed engineer because the expert "showed no specialized knowledge, experience, training or education" with regard to the particular product or industry at issue. (See Rosen v Training Loft, 16 AD3d 480, 481 [2d Dept 2005]; see also Hofmann v Toys "R" Us, Ltd. Partnership, 272 AD2d 296 [2d Dept 2000]; Ruggiero v Waldbaums Supermarkets, 242 AD2d 268, 269-70 [2d Dept 1997]; Hong v County of Nassau, 139 AD2d 566 [2d Dept 1988].) Generally, "[l]ong observation and actual experience, though without actual study of the subject, qualify a witness as an expert on that subject." (Meiselman v Crown Hgts. Hosp., 285 NY 389, 398 [1941]; see also Price v New York City Hous. Auth., 92 NY2d 553, 559 [1998].) Assuming that a witness meets a threshold of competence by study or experience, any limitation on either would go to the weight of the testimony and not its admissibility. (See Walsh v Brown, 72 AD3d 806, 807 [2d Dept 2010].) "Where both the plaintiff[ ] and the defendant[ ] present[ ] expert testimony in support of their respective positions, it [is] the province of the jury to determine the experts' credibility." (Semel v Guzman, 84 AD3d 1054, 1055 [2d Dept 2011].)

Nicholas Bellizzi is a licensed engineer with experience in highway design, traffic engineering, and accident reconstruction. He has experience in the design and construction of roadways, including roadways adjacent to water, and has worked for the Federal Highway Administration, the New York City Department of City Planning, and the Public Development Corporation, the predecessor to EDC. That he has not designed a pier with a parking lot does not establish that he is not qualified to do so. Indeed, the Court finds it difficult to reconcile the contention that Mr. Bellizzi was not qualified to offer an opinion on whether Han-Padron breached a duty of care with the contention that Philip Habib, whose expertise seems much more like Mr. Bellizzi's than Han-Padron's, "was most qualified to determine whether vehicle resistant barriers should have been created" (see Reply Affirmation ¶ 9.)

Finally as to Han-Padron's challenge to the jury's verdict, the Han-Padron Defendants contend that "[i]n light of the jury's determination that Signe Nielsen, which was responsible for designing the barriers along the perimeter of the Pier, was not liable, it was against the weight of the evidence for the jury to determine that [Han-Padron] was negligent for not designing vehicle resistant barriers"; "since the party responsible for designing the perimeter barriers for the Pier was found not liable, it was against the weight of the evidence to find [Han-Padron], which was only vicariously responsible for the acts of its subconsultant, liable for not designing vehicle resistant barriers for the Pier." (Defendants' Affirmation in Support ¶¶ 37-38 [emphasis added].) Were Han-Padron to prevail on this contention, the remedy would be a new trial, rather then judgment as a matter of law. (See CPLR 4404 [a].)

In any event, that Han-Padron is not liable vicariously for the conduct of Nielsen does not preclude liability otherwise for breach of duty. Signe Nielsen maintained throughout the trial that her expertise, and her professional license, were limited, such that she could not determine whether the design for Pier 4 should include vehicle-resistant barriers at the perimeter. The jury could have accepted her testimony, particularly since it was supported by testimony from Mr. Bellizzi, Plaintiffs' expert. [*17]

Neither the Han-Padron Defendants nor Plaintiffs challenge the jury's determination that architect Nielsen was not negligent in not including vehicle-resistant barriers in the design for Pier 4. That determination does not preclude their determination that engineer Han-Padron,

who contracted with the EDC for design of a pier with a parking lot on top, was negligent.

To the extent, therefore, that the motion of the Han-Padron Defendants seeks a setting aside of that determination, and judgment as a matter of law in their favor, the motion must be denied.

The Han-Padron Defendant also move for an order, pursuant to CPLR 3025 (b), permitting them to amend their Answer to Second Amended Complaint to add, as a Fourteenth Affirmative Defense, the allegation that Han-Padron "is entitled to a monetary set-off against the amount of any verdict or judgment against [Han-Padron], pursuant to the provisions of General Obligations Law § 15-108, as a result of the plaintiffs' settlement with defendants City of New York and New York Economic Development Corporation." Although not stated in the Proposed Amended Answer to Second Amended Complaint, Han-Padron seeks "to set off the greater of plaintiffs' settlement with the City/EDC, $8,250,000, or the 75% jury finding of culpability against the EDC." (See Defendants' Affirmation in Support ¶ 39.)

As pertinent to the motion of the Han-Padron Defendants, General Obligations Law §15-108 (a) provides: "When a release . . . is given to one or more persons . . . claimed to be liable in tort for the same injury . . . , it . . . reduces the claim of the releasor against the other tortfeasors to the extent of the amount stipulated by the release . . . , or in the amount of the consideration paid for it or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is greater."

"Under the CPLR's liberal pleading practice, a party may amend its pleadings to raise General Obligations Law §15-108 as a defense at any time, even after trial, provided that the late amendment does not prejudice the other party (see CPLR 3025 [b])." (Whalen v Kawasaki Motors Corp., 92 NY2d 288, 293 [1998].) "Prejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment." (Id.) Here, Plaintiffs have the burden of demonstrating prejudice or surprise. (See Schaffer v Batheja, 76 AD3d 970, 973 [2d Dept 2010]; Frenz v Mettu, 15 AD3d 539, 540 [2d Dept 2005].)

Plaintiffs do not object to an amendment limited to a deduction of $8.25 million from the total damages that may be awarded on the damages phase of the trial, but object to any reduction based upon the City's or EDC's "equitable share" if the amount would be greater than $8.25 million. Plaintiffs claim prejudice in that, "[w]hen [they] decided to settle the case with the City of New York and EDC, they relied on the fact that [Han-Padron's] Answer did not contain a General Obligations Law §15-108 Affirmative Defense," and Plaintiffs "accepted" the settlement "with knowledge that given that [Han-Padron] had not asserted a GOL 15-108 defense in its answer, the most [Han-Padron] would be entitled to would be a deduction of the settlement amount, lest plaintiffs be unduly enriched." (See Plaintiffs' Affirmation in Opposition ¶ 92.) [*18]

Plaintiffs' plea of prejudice is disingenuous at best. As noted above, when the settlement agreement between Plaintiffs and the City/EDC was placed on the record during trial, the Court attempted to focus the parties on the issues that would arise as to the non-settling parties, but no one other than the Court was particularly interested in addressing the issues. If Plaintiffs will suffer prejudice by reason of their settlement with the City/EDC and the application of General Obligations Law §15-108, it will result, not from Han-Padron's failure to plead the statute in the Answer to the Second Amended Complaint, which, in any event, would have then been premature, but from Plaintiffs' counsel's opinion as to the applicability of the statute, as discussed below, or counsel's willingness to live with the uncertainty until some future time, or both.

To the extent, therefore, that Han-Padron's motion seeks leave to serve the Proposed Amended Answer to Second Amended Complaint included as Exhibit N to the Affirmation in Support, the motion must be granted, and the amended answer is deemed served.

General Obligations Law §15-108 is also the subject of Plaintiffs' post-verdict motion, in that they seek a "judgment . . . declaring . . . that Han-Padron is only entitled to a setoff in the amount $8.25 million, representing the settlement" between Plaintiffs and the City/EDC. (See Plaintiffs' Notice of Motion, undated.) But, first, Plaintiffs move, pursuant to CPLR 4404, for judgment as a matter of law, in effect, setting aside that part of the jury's verdict that ascribed fault to EDC. Plaintiffs contend that "the jury's finding of 75% against EDC in not including vehicle-resistant barriers in the design for Pier 4 is not supported by the evidence inasmuch as EDC had absolutely nothing to do with the design of said Pier." (Plaintiffs' Affirmation in Support ¶3.)

Plaintiffs contend further that "[a]ny negligence found by the jury against EDC is purely vicarious pursuant to the non-delegable duty to maintain the premises in a reasonable safe condition and therefore, pursuant to the indemnification agreement between EDC and Han-Padron, the latter is liable for 80% of the damages to be determined in the damages portion of the trial (5% plus the 75% attributable to EDC)." (See id.) Plaintiffsassert that "judgment against Han-Padron for 80% of fault should be entered pursuant to the indemnification agreement contained in the contract between EDC and Han-Padron." (See id. ¶ 53.)

Assuming Plaintiffs' premise that EDC owed them a non-delegable duty "to maintain the premises" in a reasonably safe condition, Plaintiffs acknowledge that "[t]he Court did not charge the jury that EDC could be found liable for the actions of any other person or entity, whether a party to the action or not" (see id. ¶ 41.) Nordid the Court charge the jury as to the negligence of any person or entity other than EDC, Han-Padron, and Nielsen, and no other person or entity appeared on the Verdict Sheet. (See CPLR 4110-b].) In ruling on Plaintiffs' post-verdict motion, the Court cannot speculate that the jury's verdict was based on law outside the charge.

Plaintiffs' contention, moreover, that "the jury's finding of 75% on the part of EDC cannot be read as anything but a finding of vicarious liability for Han-Padron's negligent design" (see id. ¶ 61) must be rejected, because, as will appear, Plaintiffs are clearly incorrect that "[t]here was simply no evidence presented to the jury that would render EDC liable, other than vicariously, as the [*19]lessee of the pier" (see id. ¶ 54.)

Further, there is no basis for the Court to enter judgment against Han-Padron on an indemnification agreement to which Plaintiffs are not party. Plaintiffs cite no authority for the proposition that, "[b]y settling with EDC, [they] put themselves in EDC's shoes, a party that has an enforceable ironclad indemnification agreement with Han-Padron" (see id. ¶78.) Indeed, the indemnification agreement between EDC and Han-Padron has no bearing on whether the jury's determinations as to EDC's fault are supported by the evidence, whatever other significance the indemnification agreement might have for Plaintiffs' post-verdict motion, an issue discussed further below.

The jury's determinations as to EDC's fault, i.e., that EDC was negligent in not including vehicle-resistant barriers in the design for Pier 4 and allocating 75% of the total fault to EDC, are to be assessed in accordance with the same legal principles applied in assessing the jury's determinations as to Han-Padron's fault, except that the jury was not instructed as to any professional or specialized standard of care on the part of EDC. And the evidence discussed above on Han-Padron's motion supports the jury's determinations as to EDC's fault.

The focus, then, must be on the nature and extent of the roles and responsibilities of EDC in the design of Pier 4 in general, and, in particular, in the choice of Orsogril fencing, rather than vehicle-resistant barriers, on the perimeter. Assuming Plaintiffs are correct that "mere approval of the work performed by the contractor retained to design the pier cannot be the basis for independent liability against EDC based on active negligence" (see Plaintiffs' Affirmation in Support ¶ 35), a proposition for which Plaintiffs cite no authority, the evidence at trial supports a determination that EDC did much more than "merely" approve the design.

Plaintiffs point to no provision of the Lease dated as of February 1, 1986 between the City of New York and New York City Public Development Corporation (EDC's predecessor) that addresses EDC's authority, roles, or responsibilities, with respect to the design and construction of Pier 4. There is a reference in the Consultant Contract dated as of August 17, 1992 between New York City Economic Development Corporation and Han-Padron Associates, Section 1.07, to a "contract between The City of New York . . . and the Corporation." That contract between the City and EDC is not in evidence, nor is there any evidence that the reference is to the Lease.

The evidence, therefore, of EDC's roles and responsibilities for the design of Pier 4 can be found in the Consultant Contract between EDC and Han-Padron, supplemented by Han-Padron's proposal for Pier 4 submitted on September 3 and accepted by EDC on September 9, 1993, and the testimony at trial by EDC's project managers, Richard Peterson and David Kane, and by Dennis Padron, Signe Nielsen, and Philip Habib. In this regard, Plaintiffs' submission of an affidavit executed by David Kane in connection with the parties' respective motions for summary judgment was not considered, since it was not evidence at trial. Likewise, as to the affidavits of Nicholas Bellizzi submitted by the Han-Padron Defendants, except to the extent they were addressed in trial testimony. [*20]

Richard Peterson testified that his "responsibilities" on the Pier 4 project were to select the "design team," "direct the design meetings," and "manage the consultants during the design process." When David Kane succeeded Mr. Peterson as project manager, "the design work was largely completed," and, therefore, his understanding of the history must have come from others. In any event, Mr. Kane testified that his understanding "[w]ith regard to public safety, pedestrian, vehicular" was based upon EDC's contract with Han-Padron, which "specifies that designer is responsible to meet all codes, regulations, requirements, local, State, Federal, whatever it is, and those would include codes that govern pedestrian, vehicular safety."

The Court did not instruct the jury with respect to any government "codes, regulations, requirements," but the jury was instructed that it could consider the AASTHO Guidelines or DOT Design Manual, or both, to the extent found to reflect custom and practice. Governmental "codes, regulations, requirements" do not exhaust common-law duties of reasonable care owed to the general public, and the Court does not read the EDC/Han-Padron contract as assigning all responsibility for pedestrian and vehicular safety to Han-Padron. After all, EDC also retained transportation engineer Philip Habib to assist on the Pier 4 project.

The EDC/Han-Padron Consultant Contract also provided, in Section 5.01, that "[a]ll reports, plans, studies, drawings, tracings, specifications, documents and materials to be prepared by [Han-Padron] . . . must be approved in writing by [EDC] before they shall be considered accepted," and that "[t]he same shall be revised by [Han-Padron] in accordance with the directions of [EDC] prior to approval." Philip Habib's June 24, 1993 memorandum, in which he suggested "[b]arriers at the ends/edges of the pier," was directed to Richard Peterson at EDC, although it also purported to reflect discussions at a "project meeting" the previous day. Mr. Habib testified that he did not remember whether barriers were discussed at the meeting, but that no one at EDC ever asked him "what kind of barrier [he] was suggesting" in that memo.

Dennis Padron testified at length from documents as to EDC's participation in the design of Pier 4, but he acknowledged that he "wasn't directly involved in the project, . . . did not attend the project meetings, so [he could not] comment on what was discussed or not discussed." Signe Nielsen testified that those meetings were held bi-weekly during the design of Pier 4.

As noted above, Signe Nielsen testified that EDC directed that the Waterfront Regulations be followed. She also testified that the Orsogril fence was selected "by the team that was working on the project," which included representatives of EDC, Han-Padron, and a "traffic engineer." Again, as noted above, Richard Peterson apparently shared Ms. Nielsen's misconception at the time that the Waterfront Regulations did not allow vehicle-resistant barriers at the perimeter of Pier 4. There was no evidence that either Ms. Nielsen or Mr. Peterson, or anyone else at EDC, ever contacted the Department of City Planning for an opinion.

The Court concluded above, in connection with the assessment of the jury's finding of negligence on the part of Han-Padron, that there was no evidence that EDC directed the use of Orsogril fencing at Pier 4, or otherwise prohibited the use of vehicle-resistant barriers, so as to [*21]relieve either Han-Padron or Nielsen of their respective duties to use reasonable care in the design of the pier. That conclusion does not preclude a determination that EDC participated sufficiently in both the design of the pier generally, including whatever evaluation, if any, was made of the risk of harm to motorists and pedestrians, and in the choice of materials for construction of the pier, including the use of Orsogril fencing at the perimeter, to have breached its own duty to use reasonable care.

For reasons repeated often enough in the Court's rulings so far, there was sufficient evidence for the jury's determination that EDC was negligent in not including vehicle-resistant barriers in the design for Pier 4. Plaintiffs do not specifically challenge the jury's allocation of 75% of the fault to EDC, and so the Court will not address it, other than to note that such an assessment could not be made without an assessment as well of the fault specifically allocated to Han-Padron and plaintiff Shlomit Fried, and neither Plaintiffs nor the Han-Padron Defendants has sought either.

The balance of Plaintiffs' motion seeks a ruling by the Court that, no matter what the jury may rule at the damages phase of the trial, no more than $8.25 million, the amount of the settlement with the City and EDC, will be deducted from the judgment entered against Han-Padron upon application of General Obligations Law §15-108. Relying upon the Second Department's decision in Weinstock v Jenkin Contr. Co. (134 AD2d 254 [2d Dept 1987]), Plaintiffs contend that, because of an indemnification provision in the agreement between Han-Padron and EDC, it would be inappropriate to apply §15-108 to reduce the jury's damages award to reflect EDC's "equitable share of the damages" (see General Obligations Law §15-108 [a].) As articulated by Plaintiffs, "because EDC was not actively negligent in the design of the subject pier, the indemnification agreement is enforceable and Han-Padron is liable for EDC's 75% of fault as found by the jury." (See Plaintiffs' Affirmation in Support ¶ 90.)

The short answer to Plaintiffs' argument is that the Court has now rejected the premise that EDC was not "actively negligent in the design of the subject pier." Beyond that, Plaintiffs do not explain how the determination they seek from the Court would be appropriately made in the context of a post-verdict motion pursuant to CPLR 4404 (a). Moreover, since Plaintiffs are not party to the indemnification agreement, Plaintiffs do not explain how the determination as to

its meaning and enforceability can be appropriately made without at least notice to EDC. Plaintiffs do not show that, because EDC absented itself from the trial after the settlement was reached, a determination on EDC's rights under the indemnification agreement would be binding upon EDC, or, if not, that it would be binding upon Plaintiffs and Han-Padron.

On the other hand, the Han-Padron Defendants contend that the City and EDC's cross- claims against them were discontinued when the settlement with Plaintiffs was put on the record, and, in any event, were dismissed by the Court at the end of trial. They are half right. The only cross-claims discontinued by the City and EDC were those asserted against the Iffland Kavanagh Defendants. The Court did dismiss the City and EDC's cross-claims against Han-Padron and Nielsen. Any cross-claims for contribution were barred by General Obligations Law §15-108 (c); and, although any cross-claims for indemnification were not barred by the statute (see Glaser v M. Fortunoff of [*22]Westbury Corp., 71 NY2d 643, 646-47 [1988]; Baron v Grant, 48 AD3d 608, 610 [2d Dept 2008]), the City and EDC were no longer present to assert them. Again, it remains to be seen whether the City and EDC accept that ruling. But it is not clear that, even if the claims for indemnification are dismissed, the presence of the indemnification provision in the EDC/Han-Padron contract can be given no significance for purposes of General Obligations Law §15-108. This is all virgin territory.

In any event, a determination as to application of General Obligations Law §15-108 would be premature. If the jury does not award damages in excess of $8.25 million, the issue becomes moot. More substantively, Plaintiffs make no attempt to account for the operation of CPLR Article 16, which, based upon the jury's verdict allocating less than 50% of the fault to Han-Padron, would appear to limit Han-Padron's liability for any damages awarded for non-economic loss (see CPLR 1601 [1].) Where, as here, more that one tortfeasor could be found liable for the plaintiff's injuries, an indemnification agreement can be enforced as to non-economic loss only to the amount limited by Article 16. (See Cunba v City of New York, 12 NY3d 504, 509-10 [2009]; Frank v Meadowlakes Dev. Corp., 6 NY3d 687, 691-93 [2006].)

For these reasons, the Court is disinclined to, in effect, render an advisory opinion on the amount of any reduction from the jury's award of damages. Because, however, it appears from prior proceedings that uncertainty around the issue, and particularly the meaning and applicability of Weinstock, may be inhibiting final settlement, the Court offers the following comments.

In Weinstock v Jenkin Contr. Co. (134 AD2d 254), the non-settling defendant "was contractually bound to indemnify the [settling defendant] for its proportionate share of liability" "even where substantial responsibility for the injury was found on the part of the [settling defendant]" (see id. at 255.) The court held that there was "no merit to the [non-settling defendant's] argument that General Obligations Law §15-108 operates to reduce the plaintiff's

judgment against [the non-settling defendant] by the [settling defendant's] share of liability." (See id.) "Wherethe concern is with indemnity, General Obligations Law §15-108 has no

application and does not act as a bar to recovery." (Id.) The court in Weinstock did not further articulate its reasoning.

"The purpose of the statute is to encourage settlement, although the statute is also concerned with ensuring equity." (Whalen v Kawasaki Motors Corp., 92 NY2d at 292.) "Plaintiffs should be fairly compensated, but non-settling defendants should not bear more than their fair share of a plaintiff's loss." (Id.) "Moreover, the possibility of double recovery should be avoided." (Id.) Where the non-settling defendant is obligated to indemnify the settling defendant, the statutory purposes are best served by not making deduction for the "equitable share" of the settling defendant, and, instead, by deducting the amount of the settlement.

The indemnification provision here is found in Section 9.02 of the contract between EDC and Han-Padron, and reads in pertinent part as follows:

"The Consultant agrees to defend, indemnify and hold the Corporation and the City and each [*23]of their officials, officers, agents and employees harmless from any and all claims, judgments and liabilities, including, but not limited to, claims, judgments and liabilities for injuries to persons (including death) and damage to property, on account of any act, omission, negligence, fault or default of the Consultant, its agents, employees, servants, independent contractors and subcontractors . . . "

Even assuming that this indemnification provision, like the indemnification agreement in Weinstock, is fully enforceable (see General Obligations Law §5-322.1; Taylor v City of New York, 150 Misc 2d 528, 533-34 [App Term, 2d Dept 1991]), Plaintiffs argue that "[a] reading of the indemnification provision in this case reveals that it does not purport to indemnify the EDC for its own negligence" (see Plaintiffs' Affirmation in Support ¶ 97.) But that appears to undermine Weinstock's rationale for not applying General Obligations Law §15-108. Indeed, the indemnification provision is limited to "any act, omission, negligence, fault or default of [Han-Padron], its agents, employees, servants, independent contractors and subcontractors." Other than plaintiff Shlomit Fried, EDC, and Han-Padron, the jury found no other person or entity

negligent, and specifically found Nielsen, Han-Padron's subcontractor, not to have been negligent. The indemnification provision, therefore, does not appear to cover any damages other than might be assessed against Han-Padron in accordance with the jury's allocation of fault.

To recap, the motion of the Han-Padron Defendants (motion sequence no. 48) is granted only to the extent that leave is granted to amend their Answer to the Second Amended Complaint, and the Proposed Amended Answer to the Second Amended Complaint included as Exhibit N is deemed served.

Plaintiffs' motion (motion sequence no. 49) is denied.

January 19, 2012___________________

Jack M. Battaglia

Justice, Supreme Court