11 Essex St. Corp. v Tower Ins. Co. of N.Y.

11 Essex St. Corp. v Tower Ins. Co. of N.Y. 2011 NY Slip Op 01127 Decided on February 17, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 17, 2011
Tom, J.P., Saxe, DeGrasse, Freedman, Román, JJ.
4287 600176/04 110019/04 101984/05 590172/06 590479/06 590879/06 590972/06 590456/09

[*1]11 Essex Street Corp., Plaintiff,

v

Tower Insurance Company of New York, Defendant.



11 Essex Street Corp., Plaintiff-Respondent-Respondent,

v

7 Essex Street, L.L.C., etc., Defendant-Respondent, DeSimone Consulting Engineers, et al., Defendants-Appellants, Berzak Gold, P.C., Defendant-Respondent-Appellant, Big Apple Wrecking and Construction Corp., Defendant. [And Other Actions]




Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka
of counsel), for respondent-appellant.
Zetlin & De Chiara LLP, New York (Michael J. Vardaro of
counsel), for DeSimone Consulting Engineers, PLLC, appellant.
Harrington, Ocko & Monk, LLP, White Plains (Michael W.
Freudenberg of counsel), for Jeffrey M. Brown Associates, Inc.,
appellant.
Weg & Myers, P.C., New York (Dennis T. D'Antonio of
counsel), for respondent-respondent.
Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn
of counsel), for respondent.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered September [*2]15, 2009, which, insofar as appealed from, granted plaintiff's motion to amend the complaint to add a cause of action for gross negligence and a demand for punitive damages against defendants Jeffrey M. Brown Associates, Inc., DeSimone Consulting Engineers, and Berzak Gold, P.C., and denied DeSimone's motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.

The record shows that Jeffrey M. Brown Associates knew that the building at 7 Essex Street would not tolerate the likely settlement of its foundations and that plaintiff's building had to be underpinned, and yet the record does not permit the conclusion as a matter of law that Brown fulfilled its responsibility to monitor the excavation every day. DeSimone was responsible for performing controlled inspections of the underpinning of plaintiff's building and knew that the building might be damaged during the excavation, and yet the record does not permit the conclusion that DeSimone took all necessary precautions to prevent damage to the building. Berzak Gold's principal knew that plaintiff's building had only a rubble slab footing and yet did not speak to plaintiff or ask to see any construction plans. The record presents issues of fact whether defendants' conduct "evinced a conscious disregard of the rights of others or [was] so reckless as to amount to such disregard" (Wing Wong Realty Corp. v Flintlock Constr. Servs., LLC, 71 AD3d 537, 538 [2010] [internal quotation marks and citation omitted]). Thus, the court properly permitted plaintiff to amend the complaint to add a cause of action for gross negligence against defendants, since the amendment caused no prejudice to them (see Heller v Louis Provenzano, Inc., 303 AD2d 20, 22 [2003]). As the faulty underpinning of a multi-story building implicates public safety, if gross negligence is proved, punitive damages may properly be awarded (see Fonda v 157 E. 74th Co., 158 AD2d 297 [1990]).

The court correctly denied DeSimone's motion for summary judgment on the grounds that it had denied a prior summary judgment motion by DeSimone and no new factual assertions and evidence were submitted or other sufficient cause shown for DeSimone's making the second motion (see Jones v 636 Holding Corp., 73 AD3d 409 [2010]; Forte v Weiner, 214 AD2d 397 [1995], lv dismissed 86 NY2d 885 [1995]).

We have considered defendants' remaining contentions and find them without merit.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 17, 2011

CLERK