Anita Terrace Owners, Inc. v Goldstein Assoc. Consulting Engrs., PLLC
Annotate this CaseDecided on July 12, 2013
Supreme Court, Queens County
Anita Terrace Owners, Inc., Plaintiff,
against
Goldstein Associates Consulting Engineers, PLLC, R & L CONSTRUCTION, INC., GRACE MANUFACTURING CORP., W.R. Grace & Co., W.R. Grace & Co.-Conn., Grace Construction Group, Inc., and Grace Construction Products, and "XYZ Corp." said name being fictitious and representing an unknown potentially liable party, Defendants.
14815/ 2007
Orin R. Kitzes, J.
Upon the foregoing papers it is ordered that the motions are consolidated for purposes of disposition and are determined as follows:
This case arises from a construction repair project (the Project). Plaintiff Anita Terrace Owners, Inc. (Anita Terrace), alleges damages caused by leaks in the roof of a parking garage which it owns. The leaks were alleged caused by the improper installation of a Grace-manufactured waterproofing system on the garage roof during a major renovation of the garage that began in 2004. Defendant Goldstein and defendant R & L Construction, Inc. (R & L), were respectively, the engineer and contractor on the Project.
As against Grace, Anita Terrace alleges causes of action for breach of warranty and negligence based on the contentions that the Grace waterproofing system R & L installed was defective and that Grace breached its duty to supervise, inspect and oversee R & L's waterproofing work or otherwise negligently monitored the installation of the Grace waterproofing system.
As against Goldstein, Anita Terrace alleges causes of action for breach of contract, negligent misrepresentation and negligence.
Grace and Goldstein separately move to dismiss the causes of action on various grounds as discussed below. Plaintiff opposes the motions and the motions of both Grace and Goldstein are also opposed by the respective parties.
Facts
Anita Terrace is a cooperative apartment complex located in Rego Park, New York. It consists of three buildings and a multi-level parking garage. The complex was originally constructed in approximately 1952, as rental apartments. It was converted to a cooperative apartment corporation in 1991. The entire complex fell into both physical and financial trouble. In 1999, the tenant owners gained control of the building from the management company. In 2003, the entire complex was placed into bankruptcy. In 2004, the complex was sold through the bankruptcy and the Pinnacle Group took over management pursuant to an agreement with the bankruptcy trustee and the bankruptcy court.
The parking garage located at the complex was in such disrepair that it was condemned by the New York City Department of Buildings in 2000, as being structurally unsound. After the Pinnacle Group took over the complex, it immediately sought bidders for renovations of the building and, further, to renovate the garage so it could be re-opened. The Pinnacle Group retained Goldstein, an engineering firm in New York, which then prepared drawings and specifications for the renovation of the garage structure. Goldstein then organized the bid process and R & L was one of the contractors invited to bid on the garage renovation. R & L had previously worked with Goldstein on other projects and thus had a working relationship with [*2]some of the engineers at that firm.
The Project was extensive and or included replacement of approximately 20 to 30% of the structural concrete slab (referred to as the substrate) on the rooftop parking deck, applying a waterproofing system on the rooftop and then installing the wearing or top slab on the concrete. The bid specifications made reference to the waterproofing project being the Grace Procor system, but the specifications from Goldstein did not include any protocol or procedure for applying/installing the Grace system.
R & L submitted the lowest bid of $1.85 million which included extensive structural renovations to the concrete columns; building a new ramp; relocating support columns; applying a Kemper waterproofing system on the mid level deck of the garage; removing the wearing level on the rooftop deck; demolition and replacement of 20 to 30% of the substrate on the roof deck; applying the Grace Procor waterproofing membrane; laying down the protection board and then pouring a new top or wearing layer of concrete on the roof. This also included ancillary work such as placement of several new drains, renovating existing drains and installing flashing work around the drains.
The contract between R & L and Anita Terrace was prepared by Goldstein and incorporated the bid specifications prepared by Goldstein, as well as the warranties of the contractors bidding for the Project. Both the specifications and the contract identified the waterproofing system to be used on the roof deck of the parking garage as "Grace at the roof slab", but neither provided any detailed specifications or protocols to be followed by the contractor regarding the Grace system (in contrast to the detailed specifications and protocols contained in the specifications for the Kemper waterproofing system used on the lower level, which had 22 pages of specifications). Nevertheless, the specifications required that the contractor be an "approved applicator" for the waterproofing system, and required the contractor to submit documentation from the membrane manufacturer verifying the contractor's status as an approved applicator. R & L was not an approved applicator of the Grace system, and did not submit any documentation alleging that they were. It is further alleged that R & L also never gave any verbal assurances to either Anita Terrace or Goldstein that they were an approved applicator. Notwithstanding this fact, R & L was awarded the bid to perform the work.
Work on the Project started in the fall of 2004, and continued into 2005. No written contract was ever entered into between Goldstein and Anita Terrace. Rather the contract was oral. Goldstein essentially admits in its motion papers that a contract existed, however, the extent of its obligations under the contract are at issue. In any event, the Project involved the demolition and repair of the structural elements of the garage and waterproofing of the parking decks.
Jason Johnson, P.E., was Goldstein's senior engineer for the Project. He testified that he prepared the Specifications based upon a generic template which he modified for this particular Project. It is alleged that part of Goldstein's design duties was to specify the waterproofing [*3]systems for the Project. Johnson selected a Kemper waterproofing product for the indoor middle parking deck. The Kemper waterproofing system was included in the original Specifications. After the Specifications were prepared, but before the bid invitations went out, Johnson decide to include a separate waterproofing system for the roof deck of the garage. He testified that this was necessary because the roof parking deck was exposed to the sun and required an overburden driving surface which rendered the Kemper membrane inappropriate for that area. Johnson consulted with other engineers at Goldstein, one of whom recommended Grace Procor for the roof deck. Johnson testified that he had never previously been involved with a project where Procor was applied so he called Grace's sales representative, Robert Montenaro, to discuss its suitability for the garage. Montenaro confirmed to Johnson that Procor was an appropriate product. Johnson then included "Grace at Roof Slab" in the bid amount table in the Specifications, but did not include the separate Procor manufacturer guide in the Specification, as was done for the Kemper system. Johnson testified, however, that it should have been included.
Joel Wiener, the managing member of Pinnacle Managing Co., LLC (Pinnacle), the management company for Anita Terrace, avers that Pinnacle had specifically informed Goldstein that the waterproofing work must be guaranteed by a warranty from the product manufacturer; and that this was a very important item for Anita Terrace and Pinnacle, especially in light of the pre-repair condition of the garage and Anita Terrace's financial issues. As such, Wiener avers, the Specifications required the contractor to issue a warranty as to the quality and workmanship with guarantees against all defects and failures for a period of 10-years. Grace, instead, offered a standard five-year warranty for Procor. However, the Grace warranty would only be issued for applications made by Grace-approved and certified contractors and, according to the standard-form Procor warranty, it would not warranty "installations made by other persons not authorized by Grace." Montenaro testified that to become a certified Procor applicator, each contractor must undergo a three-day training seminar at Grace's facilities in Cambridge, Massachusetts. Grace maintained a list of Grace-certified Procor applicators located in the New York metropolitan area.
Robert Montenaro (of Grace) testified that Procor is sold and distributed by Grace in two components which are mixed together just prior to application. After the components are combined, Procor can be either sprayed onto the surface using specialized spray equipment or applied using "pour and spread" method with a trowel or metal squeegee. It is then left to cure for 24-48 hours before foot traffic should be permitted. The Procor membrane is protected by a felt mat and then a concrete driving surface is poured atop the system.
Patrick White testified on behalf of R & L that Grace was notified by R & L in advance of the installation and that Grace had a representative on-site to answer questions prior to the start of the waterproofing work. White testified that R & L was not allowed to purchase Procor from a distributor unless it had scheduled a site meeting with Grace to review the application process. White also testified that R & L was not permitted to begin the application process until a Grace representative was present on-site to supervise the work and certify that it was being applied properly. [*4]
Grace's product specifications direct that a flood test must be performed after the Procor has been applied and given time to cure. A flood test involves the flooding the parking deck with several inches of standing water which is left for several hours or days. The purpose of the test, according to both Johnson and Montenaro, is to ensure that there is integrity to the waterproofing membrane and that it is properly adhered to the substrate so that water could not penetrate the concrete parking deck. R & L never performed a flood test, and neither Grace nor Goldstein advised R & L that a flood test was required. R & L proceeded with the installation of the protective felt mat atop the Procor membrane and then poured the concrete traffic surface without any party first determining whether the membrane was properly applied and leak-free.
Under the R & L contract, R & L was paid periodically based upon the percentage of work which had been completed to date. In order to receive payment, R & L submitted payment applications to Goldstein for approval. Goldstein then signed-off on the payment applications which certified to Anita Terrace that the work had been completed properly and that payment should be released.
Shortly after R & L completed the work on the roof parking deck, Anita Terrace's employees noticed that the underside of the roof deck was leaking and exhibited signs of water penetration. Goldstein, R & L and Grace were all notified. Over the course of several months, beginning in May, 2005, all of the parties held multiple meetings at the garage in an effort to diagnose the source of the leaks and determine an appropriate solution. Initially, Grace and R & L claimed that the leaks might have originated as a result of inadequate flashing and counter-flashing along the perimeter where the parking deck met the parapet wall. Anita Terrace disputed this notion and engaged an outside contractor to install metal flashing along the entire perimeter to demonstrate that the flashing was not the problem. The leaks persisted after the new flashing was installed. Goldstein also instructed R & L to cut away sections of the concrete overburden above areas where leaks were observed and to reapply Procor to those areas. In some cases, the re-application of Procor corrected the condition in the limited area, but then a new leak would crop up nearby. In September of 2005, R & L, Goldstein and Grace conducted the flood test which was never performed before the concrete overburden was poured. Within minutes of the start of the flood test, leaks were observed throughout the entire upper parking deck.
Over the course of several months, Goldstein and R & L continued to attempt to repair the leaks in a patchwork fashion. However, that approach was not a viable solution. On Goldstein's recommendation, an expert roofing and waterproofing consultant, Commercial Roofing Solutions (CRS), was hired to investigate the leaks. CRS' expert, Rainer Gerbatsch, CPRC-RRC-LEED, conducted numerous site visits and performed invasive probes of the parking deck. CRS issued a report, dated June 26, 2006, which revealed (at least three) troubling facts. The first was that R & L was not approved by Grace as a certified Procor applicator and, in fact, had never previously worked with Procor. Second, the Procor warranty offered by Grace required the waterproofing system to be applied by a pre-certified applicator and since R & L was not certified, even without any leaks or problems, the Project would never have qualified for or received the manufacturer's warranty from Grace. Third, Anita Terrace learned that the [*5]recommended, industry-standard flood test was never performed prior to the installation of the overburden atop the Procor.
The CRS report concluded that the leaks were "without exception, traced to defects in the waterproofing application" and failure to apply the system pursuant to the manufacturer's specifications. The Report notes the following specific defects in the waterproofing:
i.Inadequate Procor membrane thickness. The Procor
manufacturer's specifications require a minimum thickness of 60 mil. Membrane thickness at many locations measured considerably less than that, even as low as 10-15 mils;
ii.Procor observed at locations was uncured and blistered;
iii.Moisture was observed at many locations on the underside of the deck slab;
iv.The membrane in some locations found to be applied in two layers which were easily separated with moisture in between; and
v.Inadequate or incomplete flashing around drains and other deck penetrations.
The CRS report also stressed that the required flood test was never performed prior to installation of the concrete overburden. Moreover, it noted that R & L did not have prior experience in applying Procor and necessarily could not deliver the manufacturer's warranty because it was not Grace-approved.
As a result of the system-wide failure of the waterproofing membrane, CRS concluded that the entire roof deck needed to be re-waterproofed. This would have to accomplished by removing the entire concrete overburden traffic surface and the underlying waterproofing and re-installing both systems in accordance with proper procedures and practices.
Plaintiff submits that none of the parties disputed any of the findings or conclusions of the CRS report. A meeting was held between R & L's principals and Pinnacle at which R & L assured that it would make the required repairs. When R & L failed to deliver on its promise, plaintiff commenced the instant lawsuit.
Motion by Grace
Plaintiff asserts four causes of action against Grace, to wit, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, breach of a 20-year warranty and negligence.
The branches of the motion which are to dismiss the claim of breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose are granted. [*6]To establish a prima facie case with respect to liability on a cause of action to recover damages for breach of implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose, a plaintiff must demonstrate that the subject product had fundamental structural deficiencies and design flaws, which required extensive repairs and design modifications, making it unmerchantable and not fit for its particular purpose of reselling to the general public (see generally Bimini Boat Sales v Luhrs Corp., 69 AD3d 782, 783 [2d Dept 2010]). As plaintiff was unable to raise a question of fact as to whether Grace' Procor 10 product was defective, Grace is entitled to dismissal of plaintiff's claims for breach of implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose (see Pai v Springs Indus., Inc., 18 AD3d 529 [2d Dept 2005]; Nassau Suffolk Whit Trucks, Inc. v Twin County Transit Mix Corp., 62 AD2d 982 [2d Dept 1978]). There is no evidence in the record that Procor 10 installed by R & L was defective. Instead, the only expert testing undertaken to determine the cause of the leaks in the Garage indicates that the leaks were caused by R & L's improper installation of the Procor 10 system.
The branch of the motion which is to dismiss the cause of action for breach of an alleged 20-year warranty, is granted. "It is axiomatic that one who seeks to recover under a contract must prove that a binding agreement was made and establish its terms (Ellen v Lauer, 210 AD2d 87, 88 [1994]; Fisch, Evidence § 1098 [2d ed]). The burden of proving the existence, terms and validity of a contract rests on the party seeking to enforce it (Paz v Singer Co., 151 AD2d 234, 235 [1989]). Here, there is no evidence that Procor 10 was defective and no evidence of a 20-year warranty given by Grace to plaintiff. It appears that the only warranty that Grace did issue was a five-year warranty which does not cover any failure caused by or due to workmanship or improper installation.
The branch of the motion by Grace to dismiss the cause of action for negligence is denied. "To prove a prima face case of negligence, plaintiff must establish the existence of a duty on the defendant's part to the plaintiff, the breach of the duty and that the breach of the duty was a proximate cause of an injury to the plaintiff" (Gordon v Muchnik, 180 AD2d 715 [2d Dept 1992]; see also Martinez v City of New York, 90 AD3d 718 [2d Dept 2011]). Here, Grace argues that it did not owe a duty of care to plaintiff. Evidence in the record raises an issue of fact as to whether R & L was permitted to even obtain and apply the Procor system without Grace's express approval and direction. To that end, Patrick White, R & L's president, testified that R & L was not allowed to purchase the Procor from the distributor unless it had scheduled a site meeting with Grace to review the application process. White also testified that R & L was not permitted to begin the application process until a Grace representative was present on-site to supervise the work and certify that it was being applied properly. That R & L was not permitted to purchase or apply Procor at the Garage without Grace's instruction and approval suggests that Grace established methods, procedures and conditions which had to be followed if the purchaser wished to receive a warranty for the Procor product. Also, since Grace imposed these requirements in the absence of R & L becoming pre-certified to apply Procor (which did not happen), Grace' own representative had to conduct on-site and ongoing supervision of R & L as it prepared and applied Procor waterproofing agent. Where, as here, defendant Grace undertook to [*7]perform inspections of the installation, even in the absence of any legal duty to do so, Grace became subject to a duty to perform such inspections in a careful manner and not negligently (see West Side Corp. v PPG Indus., Inc., 225 AD2d 459 [1st Dept 1996]; Glanzer v Shepard, 233 NY 236, 239-240 [1922]).
Moreover, when dealing with the liability of a "volunteer", "[t]he query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good" (Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]). Thus, plaintiff must show not only that defendant acted negligently in providing its services but also that its conduct in so doing placed the plaintiff in a more vulnerable position that it would have been absent any action by the defendant. "[A]n assumed duty,' or a duty to go forward', may arise once a person undertakes a certain course of conduct upon which another relies" (Heard v City of New York, 82 NY2d 66, 72 [1993], quoting Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522 [1980]). "In determining whether a cause of action lies in such instances, [t]he query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm,'" or, rather, whether he or she has merely " stopped where inaction is at most a refusal to become an instrument of good'" (Heard v City of New York, 82 NY2d at 72, quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]; Nallan v Hemsley-Spear, Inc., 50 NY2d at 522). "Put differently, the question is whether Grace's conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had Grace done nothing" (Heard v City of New York, 82 NY2d at 72; see Nallan v Helmsley-Spear, Inc., 50 NY2d at 522). Under the circumstances, Grace's conduct may have placed the plaintiff in a more vulnerable position than that which it otherwise would have been in by participating in the installation (see Heard v City of New York, 82 NY2d at 72; cf. Gordon v Muchnick, 180 AD2d 715 [2d Dept 1992]). At a minimum, an issue of fact is raised in this regard. Accordingly, the branch of the motion by Grace which is to dismiss the negligence cause of action is denied.
Motion by Goldstein
It is undisputed that the contract between Goldstein and Anita Terrace was oral. The parties dispute, however, the scope of the oral contract. Goldstein claims that it was only hired to prepare the design specifications and to make controlled inspection of the structural work for the Project. Anita Terrace contends that Goldstein's responsibilities were much broader.
Goldstein met its initial burden of establishing its prima facie entitlement to judgment as a matter of law on the first cause of action to recover damages for breach of an oral contract, by submitting the affidavit of its principal, Michael Guilfoyle, P.E., stating that Goldstein was only hired to "design the repair of the Garage . . . and to perform rebar inspections for the structural work", but was not responsible for supervising and inspecting R & L's non-structural (i.e. waterproofing work. However, in opposition to Goldstein's prima facie showing, plaintiff submitted the affidavit of Joel Wiener, who hired Goldstein on behalf of Anita Terrace. Wiener affirms that, in addition to designing the repairs and performing structural inspections, Goldstein [*8]was also hired to (i) prepare a bid package; (ii) coordinate the competitive bidding process; (iii) advise and assist Anita Terrace in the selection of a contractor; (iv) supervise, oversee, inspect and approve the construction work performed by R & L; (v) confirm that the work was properly completed in order to certify payment applications; and (iv) act as Anita Terrace's owners representative to ensure that the work was done properly to accomplish the objective of delivering a structurally-sound watertight Garage.
"On a motion for summary judgment the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine" and "[a]ny conflict in the testimony or evidence presented merely raise[s] an issue of fact" (Pryor & Mandelup, LLP v Sabbeth, 82 AD3d 731 [2d Dept 2011], citing 6243 Jericho Realty Corp. v Auto Zone, Inc., 27 AD3d 447, 449 [2d Dept 2006]; see also Chase v Skoy, 146 AD2d 563 [2d Dept 1989]).
Other evidence, including letters exchanged between Goldstein and Grace after the leaks were discovered also indicate that Goldstein's involvement in the Project extended beyond mere design specifications and to make controlled inspection of the structural work. Michael Radoncic, a Pinnacle employee, also testified that Goldstein acted as Anita Terrace's owner representative and was responsible for all aspects of the entire Project including whether R & L was approved by Grace as a certified applicator of Procor; determining the requirements to obtain a warranty for the waterproofing work from Grace and ensuring that the Project qualified for a warranty and ensuring that a flood test was performed to ensure the integrity of the waterproofing system.
The record indicates that Goldstein designed specified different waterproofing systems at different parking levels of the Garage. Specifically, Goldstein selected a Kemper system for the middle level of the Garage, and the subject Procor system for the upper level. When Goldstein prepared the written Specifications for the Project, it included the manufacturer's specifications for the Kemper system, but failed to include the Grace specifications for the Procor system. Johnson admitted during his deposition that the Procor specifications should have been included as part of the Specifications, but were not. He also stated that he did not know whether R & L were ever given the Procor application specifications at any time before or during construction. Since R & L should have had those specifications, there is an issue of fact as to whether Goldstein failed to prepare adequate Specifications for the work.
The record also reveals that Goldstein breached the terms of its agreement and that its breaches proximately caused Anita Terrace's damages. Goldstein had a contractual duty to competently advise Anita Terrace during the bidding phase of the Project and to perform due diligence with respect to the contractors which it selected to bid on the Project. There is an issue of fact as to whether Goldstein breached that duty by selecting R & L to receive a bid invitation before determining whether R & L was qualified to perform the work and whether it could deliver the required warranty from Grace for the waterproofing system. In fact, R & L was neither qualified for the work nor able to obtain the Grace warranty because it was not a Grace-approved installer. White testified that the Garage repairs were a larger project that R & L [*9]typically handles and that it usually subcontracts out the waterproofing work.
Also, the lack of a flood test before the concrete traffic surface was poured on top of the waterproofing membrane was a critical and costly error. Goldstein's failure to ensure that the waterproofing membrane was properly installed through the performance of a flood test before the concrete was poured was a critical mistake.
Moreover, Goldstein's contention that its contract did not impose a duty to inspect is contrary to the express language of the R & L contract. Although Goldstein was not obliged to supervise the construction work or to make exhaustive or continuous on-site inspections, it was, nevertheless, required to visit the site periodically in order to be familiar with the progress and quality of the work, to determine generally if the work was proceeding in accordance with the contract documents, to keep plaintiff informed about the progress and quality of the work, and to guard plaintiff against defects in the work. Goldstein's obligation to issue certificates of payment required it to be familiar with both the quantity and quality of the work done. Generally, the primary object of these provisions is " to impose the duty or obligation on the architects to insure to the owner that before final acceptance of the work the building would be completed in accordance with the plans and specifications'" (Dioceses of Rochester v R-Monde Contractors, Inc., 148 Misc 2d 926, 930 (Sup. Ct. 1989), affd 166 AD3d 891 [1990], citing Welch v Grant Dev. Co., 120 Misc 2d 493, 498 [Sup. Ct. 1983]; see Capstone Enters. of Port Chester, Inc. v Board of Educ. Irvington Union Free Sch. Dist., 106 AD3d 856 [2d Dept 2013]).
The exculpatory provision contained in subparagraph 4.2.2, excusing Goldstein from responsibility for construction methods or for the acts or omissions of the contractor, does not immunize Goldstein from liability flowing from a breach of its duties to plaintiff.
Based upon this evidence and the conflicting information relayed by the parties' witnesses, that branch Goldstein's motion for summary judgment to dismiss the breach of contract claim is denied.
The branch of the motion to dismiss the eighth cause of action of the Amended Complaint sounding in negligent misrepresentation, is also denied. This cause of action alleges that Goldstein had a duty to impart correct information to plaintiff and that it breached it by representing to plaintiff that (i) R & L had submitted the required bid documentation, had the necessary qualifications and experience to perform the work and that it would be able to obtain the Grace warranty; (ii) it conducted on-site inspections to certify and confirm the quality of the work performed by R & L was acceptable and performed in a good and workmanlike manner; (iii) R & L was performing the work in accordance with the R & L Contract and the manufacturer's requirements; and (iv) R & L was entitled to periodic payments based on the adequately-completed work. It appears these representations were not true.
It is well settled that "[a] claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the [*10]defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007]; see also Parrott v Coopers & Lybrand, 95 NY2d 479, 483-484 [2000]). A special relationship may be established by "persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified" (Kimmell v Schaefer, 89 NY2d 257, 263 [1996]). Professionals, such as lawyers and engineers, by virtue of their training and expertise, may have special relationships of confidence and trust with their clients, and in certain situations liability has been imposed for negligent misrepresentation when they have failed to speak with care (see, e.g., Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417 [engineering consultants]; White v Guarente, 43 NY2d 356 [accountants]; Ultramares Corp. v Touche, 255 NY 170 [accountants]; Glanzer v Shepard, 233 NY 236 [public weighers]). Here, Goldstein was hired due to its purported expertise in designing and overseeing similar projects. Thus, Goldstein had a special relationship with plaintiff.
Second, it is alleged that Goldstein made representations to Pinnacle and Anita Terrace that were incorrect. Specifically, Goldstein invited R & L to bid on the Project and represented to Pinnacle and Anita Terrace that R & L had the experience and qualifications for the Project. It further recommended that Pinnacle hire R & L as the contractor. In fact, it appears that R & L did not have the appropriate waterproofing training and experience for the Project and could not deliver the Grace warranty which was crucial to plaintiff. Further, Goldstein represented to Pinnacle that it had inspected the waterproofing work which R & L had performed, that the work was done in a good, workmanlike manner and that R & L was therefore entitled to payment for work completed. In fact, Goldstein had not inspected the waterproofing work and the work was defective.
Third, in selecting R & L as the contractor, Pinnacle and Anita Terrace relied upon Goldstein's expertise and its experience in having done more than twenty projects with R & L.
The branch of the motion to dismiss the negligence cause of action is denied. "Generally, a person who contracts with an architect and who alleges that the architect has breached the obligation to properly design and supervise the construction, may sue for breach of contract and negligence" (Diocese of Rochester, New York v. R—Monde Contractors, Inc., supra).
The branch of the motion to dismiss plaintiff's claim for lost rental income is denied. Goldstein has not proven as a matter of law that this claim should be precluded as "speculative and incapable of being proven with any reasonable certainty" (Brown v Samalin & Bock, P.C., 168 AD2d 531, 532 [2d Dept 1990] citing Kenford Co. v County of Erie, 67 NY2d 257 [1986]). In addition, Goldstein's submission of plaintiff's letter, dated June 6, 2012, the sum and substance of which is an offer of settlement or to compromise is stricken from this motion for summary judgment pursuant to CPLR 4547.
The branch of the motion to preclude plaintiff from introducing evidence at the time of [*11]trial on its claim for lost rental income is denied. It is well settled in the Second Department that the filing of a note of issue and certificate of readiness bars seeking to enforce a discovery sanction post-note of issue (CPLR 3126; see e.g. Siragusa v Teal's Express, Inc., 96 AD2d 749 [2d Dept 1983]). Nevertheless, Goldstein has not shown that "unusual or unanticipated circumstances" have developed "subsequent to the filing of the note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice" (Uniform Rules of Trial Cts [22 NYCRR] § 202.21[d]). The note of issue in this matter was filed on February 2, 2012, which neither party has sought to vacate (Uniform Rules of Trial Cts [22 NYCRR] § 202.21[e]). Moreover, Goldstein has known for the past five years that there may be outstanding discovery, yet no basis has been established for the delay in moving for a discovery sanction well after this matter has been certified for trial.
The branch of the motion to compel plaintiff to make the garage in question available for inspection is granted on consent. The parties shall coordinate a day for inspection immediately.
Conclusion
The branches of the motion by Grace for summary judgment dismissing the claim of breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose are granted.
The branch of the motion by Grace for summary judgment dismissing the cause of action for breach of an alleged 20-year warranty is granted.
The branch of the motion by Grace for summary judgment dismissing the cause of action for negligence is denied.
The branch of Goldstein's motion for summary judgment dismissing the breach of contract claim is denied.
The branch of the motion by Goldstein for summary judgment dismissing the eighth cause of action of the Amended Complaint sounding in negligent misrepresentation is denied.
The branch of the motion by Goldstein for summary judgment dismissing the negligence cause of action is denied.
The branch of the motion by Goldstein for summary judgment dismissing plaintiff's loss of rental income claim is denied.
The branch of the motion by Goldstein to preclude plaintiff from introducing evidence at the time of trial on its claim for lost rental income is denied. [*12]
The branch of the motion by Goldstein to compel plaintiff to make the garage in question available for inspection is granted.
Dated: July 12, 2013
J.S.C.
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