Nassau County v Richard Dattner Architect, P.C.
Annotate this CaseDecided on September 11, 2006
Supreme Court, Nassau County
Nassau County, Plaintiff,
against
Richard Dattner Architect, P.C., DORMITORY AUTHORITY OF THE STATE OF NEW YORK, EMPIRE STATE DEVELOPMENT CORP., TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, MARIANO D. MOLINA, P.C., COUNSILMAN HUNSAKER & ASSOCIATES, SEVERUD ASSOCIATES, A. JAMES DEBRUIN & SONS, FEDERMAN DESIGN & CONSTRUCTION CONSULTANTS, INC., ROBERT SCHWARTZ & ASSOCIATES, ROY KAY, INC., KEYSPAN CORPORATION, ANRON HEATING AND AIR CONDITIONING, INC., DECTRON INTERNATIONALE, STONEWALL CONTRACTING CORP., NORBERTO & SONS, INC., CENTURY-MAXIM CONSTRUCTION CORP., METROPOLITAN STEEL INDUSTRIES, INC. and HATZEL & BUEHLER, INC., Defendants, RICHARD DATTNER ARCHITECT, P.C., MARINO D. MOLINA, P.C., COUNCILMAN HUNSAKER, FEDERMAN DESIGN & CONSTRUCTION CONSULTANTS, INC., ROBERT SCHWARTZ & ASSOCIATES, ROY KAY, INC., KEYSPAN CORPORATION and ANRON HEATING AND AIR CONDITIONING INC., Third-Party Plaintiffs, SEVERUD ASSOCIATES, Third-Party Defendants,
2750-04
COUNSEL FOR PLAINTIFF
Mohen & Treacy, LLP
186 Birch Hill Road
Locust Valley, New York 11560
COUNSEL FOR DEFENDANTS
(for Anron Heating & Air Conditioning)
Steven G. Rubin & Associates, P.C.
225 Old Country Road
Melville, New York 11747
Kreigh Associates, P.C.
(for Counsilman Hunsaker)
Kreig Associates, P.C.
5 Heather Court
Dix Hills, New York 11746
(for Empire State Development Corp. and Dormitory Authority)
Cornelia Mogar, Esq.,
Assistant Attorney General
The Capitol
Albany, New York 12224
(Attorney for Federman Design & Construction Consultants Inc.)
Law Office of Irwin M. Echtmen, P.C.
250 West 57th Street - Suite 1020
New York, New York 10107
(for Hatzel & Buehler, Inc.)
John P. Krol, Esq.
270 Raymond Street
Rockville Centre, New York 11570
(for Keyspan Corp. and Roy Kay, Inc.)
George D. Argiriou, Esq.
175 East Old Country Road
Hicksville, New York 11801
(for Mariano D. Molina, P.C. and Richard Dattner Architect, P.C.)
Milber, Makris, Plousadis & Seiden, LLP
3 Barker Avenue - 6th Floor White Plains, New York 10601
(for Robert Schwartz & Associates)
Ingram, Yuzek, Gainen, Carroll & Bertolotti,LLP
250 Park Avenue
New York, New York 10177
(for Severud Associates)
Zeltin & DiChiara, LLP
801 Second Avenue
New York, New York 10017
(for Stonewall Contracting Corp.)
McElroy, Deutsch, Mulvaney & Carpenter, LLP
88 Pine Street - 24th Floor
New York, New York 10005
(for Tishman Construction Corp. Of New YorK)
Goetz Fitzpatrick, LLP
One Penn Plaza
New York, New York 10109
Leonard B. Austin, J.
Third-party Defendant Severud Associates ("Severud") moves for summary judgment pursuant to CPLR 3212 on the remaining cross-claims (converted to third-party claims) asserted against it by Defendants/Third-party Plaintiffs, Richard Dattner Architect P.C. ("Dattner"), Mariano D. Molina, P.C. ("Molina"), Councilman Hunsaker ("Hunsaker"), Federman Design & Construction Consultants, Inc. ("Federman"), Robert Schwartz & Associates ("RSA"), Roy Kay, Inc. ("Roy Kay"), Keyspan Corporation ("Keyspan") and Anron Heating and Air Conditioning, Inc. ("Anron").
BACKGROUND
This action originally arose from deficiencies in the mechanical system for Nassau County's Aquatic Center. On February 1, 1996, Plaintiff Nassau County ("Nassau") entered into a written contract with Defendant Empire State Development Corporation ("ESDC") to design, develop and construct the Aquatic Center. ESDC then entered into a written contract with Defendant Dormitory Authority of the State of New [*2]York ("DASNY").
ESDC retained Defendant Richard Dattner Architect P.C. ("Dattner") to provide architectural services. Dattner retained six consultants for additional professional services for the project. Among those consultants, Severud was retained by Dattner to provide structural engineering services.
Construction on the project began in 1996. It was completed in March 1998. In 2004, Nassau filed a complaint against all parties involved in the design, development and construction of the project. Nassau's claims relate to certain defects with the mechanical ductwork and certain mechanical hangars in and around the Aquatic Center pool.
In answering the verified complaint, many Defendants brought cross-claims for indemnification and/or contribution against their co-Defendant's including Severud.By Stipulation of Discontinuance without prejudice dated August 25, 2005, Nassau discontinued its action against Severud. Subsequently, both ESDC, DASNY, and several other co-Defendant's agreed to execute the Stipulation of Discontinuance with regard to Severud.
However, some of the co-Defendants decided to continue prosecuting their cross-claims for contribution and indemnity against Severud. By order of this Court dated March 24, 2006, the remaining cross-claims were converted into a third-party claim for contribution and indemnification. These claims include assertion of entitlement to contribution by Dattner, Molina, Hunsaker, RSA, Anron, Federman, Roy Kay/Keyspan and Tishman and a claim for contractual and common law indemnification on behalf of Dattner.
Severud now moves, without opposition, for summary judgment dismissing the remaining third-party claims asserted against it. Severud alleges that there is an absence of any issue of material fact with respect to its involvement with or responsibility for any of Nassau's purely mechanical claims.DISCUSSION
A party is entitled to summary judgment when it "makes a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case." Winegrad v New York Univ. Med. Ctr., 64 NY2d. 851, 853 (1985). To succeed on its motion, Severud must prove that no triable issues of fact exist with regard to its involvement with third-party claimants in the construction of the Aquatic Center.
A.Severud's Documentary Evidence
"Any form of evidence, documentary or otherwise, may be considered on a motion for summary judgment." Wilkinson v. Skinner, 34 NY2d 53 (1974). The evidence proffered by Severud is the stipulation of discontinuance and the affidavits of Jeffrey Yick and Brian A. Falconer. The stipulation of discontinuance is not sufficient to prove that co-Defendants are not entitled to contribution or indemnification from Severud. It does not conclusively resolve all factual issues of the remaining Defendants who have asserted cross-claims; now third-party claims.
The affidavit of Jeffrey Yick, Severud's attorney does not establish prima facie entitlement to summary judgment. An attorney's affidavit, unless the attorney has first hand knowledge of the facts which is the exception rather than the rule has no [*3]probative force. Zuckerman v. City of New York, 49 NY2d 557 (1980); and Davenport v. County of Nassau, 279 AD2d 497 (2nd Dept. 2001). Mr. Yick has not established that he had first hand knowledge of the relevant facts of this case.
The affidavit of Brian Falconer, a professional engineer and an Associate Principal of Severud, in analyzing Severud's obligations under the subcontract with Dattner, establishes that such work is not encompassed in or part of the breaches alleged in the verified complaint. This affidavit is made by someone with first hand knowledge of the relevant facts. Falconer's affidavit resolves all factual issues. Therefore, Severud has established prima facie entitlement to summary judgment. The burden thus shifts to the Third-party Plaintiffs to establish that questions of fact exist. See, Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). However, there is no opposition to this motion.
B.Claims of Contribution
The basic requirements for contribution, as outlined in Dole v. Dow Chemical Co., 30 NY2d 143 (1972), and codified in CPLR Article 14, is that the culpable parties must be subject to liability for the same personal injury, injury to property or wrongful death. Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 71 NY2d 59, 603 (1988).
The documentary evidence set forth by the Third-party Plaintiffs to defeat this motion is contained in the verified answer. Each Third-party Plaintiff alleges that Severud, then as a co-Defendant, "shall be liable to [them] for contribution on the basis of apportionment of responsibility for the alleged occurrence." They further allege that Severud committed "careless, reckless, negligent, act[s] of omission or commission."
"In order to defeat a motion for summary judgment, a party opposing the motion must come forward with specific and detailed allegations substantiated by evidence in the record, and mere conclusory allegations will not suffice." Adams v. Resseguie, 87 AD2d 699, 700 (3d Dept. 1982). The cross-claims alleged in the verified answer lack specificity with regard to Severud. Therefore, because Severud has properly supported its motion for summary judgment, such relief should be granted.
C.Claim of Indemnification
In a claim for indemnification, the party held legally liable attempts to shift the entire loss to the actual wrongdoer and seeks full reimbursement. Rosado v. Proctor & Schwartz, Inc., 66 NY2d 21, 24 (1985). The only remaining indemnification claim is a common law and contractual indemnification claim asserted by Dattner. The basis for the contractual claim lies in the contract that exists between Severud and Dattner. This contract contains an indemnification clause. However, the existence of this contract is insufficient to defeat Severud's motion for summary judgment. Severud has made a prima facie showing of entitlement to summary judgment by asserting that its involvement in the project had no relation to the problems that ultimately arose. Dattner has failed to oppose this motion.
Severud has submitted Dattners' verified answer. In it Dattner alleges that it is entitled to common law and contractual indemnification "based upon the careless, reckless, negligent, acts of omission or commission and/or breach of contract and/or breach of statute and/or gross negligence of the said co-defendants [including [*4]Severud]." This statement is devoid of specifics and replete with conclusions. See, Adams v. Resseguie, supra. Therefore, it is not sufficient to defeat Severud's motion for summary judgment.
Accordingly, it, is,
ORDERED, that Third-party Defendant's motion to for summary judgment dismissing the contribution claims is granted; and it is further,
ORDERED, that Third-party Defendant's motion for summary judgment dismissing the indemnification claim is granted.
This constitutes the decision and order of the Court.
Dated: Mineola, NY_________________________________
September 11, 2006Hon. LEONARD B. AUSTIN, J.S.C.
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