Pioneer Tower Owners Assn. v Homax Constr. Inc.

[*1] Pioneer Tower Owners Assn. v Homax Constr. Inc. 2010 NY Slip Op 51866(U) [29 Misc 3d 1218(A)] Decided on October 7, 2010 Supreme Court, Queens County Agate, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2010
Supreme Court, Queens County

Pioneer Tower Owners Association, Plaintiff,

against

Homax Construction Inc., et al., Defendants.



24408 2005



Attns and Pro Se's are as follows:

Susan Warnock, Esq. for Plaintiff

Hazel F. Chin, Esq. for Defendants Homax Construction, Bo Yu and David Liu

Mark C. Fang, Esq. for defendant Hsin E. Chao, P.E.

Pro Se

Waterstone Development , Inc.

Xiao Gang

Jun Xu

Danny Chang

Augustus C. Agate, J.

The following papers numbered 1 to 10 read on this motion by defendant Jung Wor Chin, A.I.A., for an order granting summary judgment dismissing with prejudice the first cause of action for negligence, the fifth cause of action for a permanent injunction and the tenth cause of action for professional malpractice.

Papers

Numbered

Notice of Motion-Affirmation-Affidavit-Exhibits (A-Z, AA-CC).....1-4

Opposing Affirmation-Affidavit-Exhibit (A-B).................................5-8 [*2]

Reply Affirmation...............................................................................9-10

Upon the foregoing papers the motion is determined as follows:

Plaintiff Pioneer Tower Owners Association (Pioneer) is the owner of a condominium apartment building located at 37-30 103rd Street, Corona, New York. Pioneer alleges that it sustained damage to its building, including cracks, separations and open joints, as a result of excavation and underpinning operations performed during the construction of two three-story buildings on adjacent property located at 37-38 103rd Street and 37-40 103rd Street.

Defendant Waterstone Development, Inc. is the owner of the adjacent real property located at 37-40 103rd Street. Defendants Jun Xu, Xiao Gang, and Danny Chang are alleged to be owners, officers, directors, shareholders, and members of Waterstone Development, Inc. Defendant Danny Chang is alleged to be the owner of the premises known as 37-40 103rd Street, Corona, New York. Defendant Hsin E. Chao is a licensed engineer. Defendant Jung Wor Chin is a licensed architect.

Defendant Homax Construction Inc. (Homax) was the general contractor for the construction project at said adjacent property. Defendants Bo Yu and David Liu are alleged to be owners, shareholders, officers, directors and members of Homax.

Plaintiff commenced this action on November 8, 2005, and asserts twelve causes of action against some or all of the defendants. Defendants Homax, Yu and Liu served an answer and interposed five affirmative defenses, a cross claim against Waterstone, Gang, Xu, Chang, Chao and Chin, and counterclaims by Yu and Liu against the plaintiff. Plaintiff has served an answer to these counterclaims.

Defendant Chin served an answer and interposed five affirmative defenses and a cross claim against Homax, Yu, Liu, Waterstone, Gang, Xu, and Chao. Homax, Yu, Liu have served an answer to Chin's cross claim. Defendant Chao has not served an answer to Chin's cross claim. Defendants Waterstone, Gang, Xu, and Chang have not appeared in this action.

Plaintiff, pursuant to a stipulation dated September 4, 2008, and filed on January 6, 2009, discontinued the second, third, fourth, eighth, eleventh and twelfth causes of action against Jung Wor Chin. Plaintiff's sixth, seventh, and ninth causes of action do not allege any claim against Jung Wor Chin.

The only remaining claims against defendant Chin are the first cause of action for negligence, the fifth cause of action for a permanent injunction which seeks to enjoin the construction project at the adjoining premises, and the tenth cause of action for professional malpractice.

Plaintiff filed a note of issue on May 9, 2008, prior to the depositions of the parties. [*3]Pioneer's president, Anthony Chuk, was deposed on behalf of the plaintiff on June 10, 2008. None of the appearing defendants have been deposed, and a so-ordered stipulation dated September 23, 2008 states that discovery is complete. This matter was marked off the trial calendar on January 22, 2009, and the note of issue was vacated, pending the determination of a declaratory judgment action entitled Pioneer Tower Owners Association v State Farm Fire & Casualty Company, which was determined by the Court of Appeals on April 30, 2009 (Id. at 12 NY3d 302). Defendant Chin's motion to restore the matter to the trial calendar was thereafter granted and he filed a new note of issue on October 14, 2009.

Defendant Jung Wor Chin was retained by defendant Bo Yu, pursuant to a written agreement dated July 10, 2003, to provide architectural services in connection with the construction of two new four-story buildings located at 37-38 and 37-40 103rd Street, Corona, New York. Mr. Chin states in his affidavit that the project also entailed the demolition of an existing building.

Mr. Chin, pursuant to his contract with Mr. Yu, agreed to perform the following services: "1. Zoning analysis and feasibility studies for residential and commercial usage."2. Provide a minimum of three schematic sketches of the proposed layout for owner review."3. Assist owner with zoning lot certifications."4. Confirm separate lot numbers and new house numbers for buildings."5. Provide SD 1 & 2 filing and approval for sewer connections."6. Provide builder's pavement plan for sidewalk and curb cut for approval as required."7. Draw scaled plans, including structural and MEP for construction, and with appropriate Dept. notes for filing and approval."8. Stamped drawings and forms for all filings and approval."9. Building Dept. DEP, DOT expediting, with plan examiner meetings and plan approval for permits."10. Arrange for all construction inspections and sign-off."11. File all necessary controlled inspections.[*4]"12. File and obtain new Certificate of Occupancy."

Mr. Chin states in his affidavit that he prepared and submitted plans to the NYC Department of Buildings (DOB), including drawings dated November 7, 2003, a plan of work form (PW-1) and a statement of responsibility (TR-1). He prepared an architectural plan, which included drawings of a zoning plan, cellar plan, floor plans, front elevation plan and sidewall plan. The sidewall plan contains a "typical underpinning detail" in the event that underpinning was necessary. These drawing contain "General Notes" which state, in pertinent part: "6. ALL FEES, PERMITS APPLICATIONS, INSPECTIONS, CERTIFICATES AND SIGN-OFF SHALL BE SECURED BY THE CONTRACTOR AND PAID FOR BY THE OWNER UNLESS OTHERWISE NOTED...."10. THE CONTRACTOR SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL DAMAGE TO NEW OR EXISTING CONDITIONS CAUSED BY HIMSELF, HIS WORKMEN OR HIS SUBCONTRACTOR. HE SHALL REPAIR SUCH DAMAGE AT NO ADDITIONAL COST TO THE OWNER UNLESS OTHERWISE NOTED IN WRITING PRIOR TO STARTING WORK."14. CONTRACTORS SHALL BE RESPONSIBLE FOR ADEQUATELY BRACING AND PROTECTING ALL WORK DURING CONSTRUCTION AGAINST DAMAGE BREAKAGE, COLLAPSE, DISTORTIONS, STANDARDS AND GOOD PRACTICE. CONTRACTOR AGREES THAT HE SHALL ASSUME SOLE AND COMPLETE RESPONSIBILITY FOR THE SITE CONDITIONS DURING THE COURSE OF CONSTRUCTION OF THIS PROPERTY, THAT THIS REQUIREMENT SHALL APPLY CONTINUOUSLY AND NOT BE LIMITED TO NORMAL WORKING HOURS & THAT THE CONTRACTOR SHALL DEFEND, INDEMNIFY & HOLD THE ARCHITECT OR ENGINEER HARMLESS FROM ANY AND ALL LIABILITY, REAL OR ALLEGED IN CONNECTION WITH THE PERFORMANCE OF WORK ON THIS PROJECT."15. THE ARCHITECT OR ENGINEER OF DESIGN HAS NOT BEEN RETAINED FOR ANY FILED [FIELD] SUPERVISION OR INSPECTION. HIS RESPONSIBILITY IS LIMITED TO THE ACCURACY OF THE PLANS."

The DOB approved Mr. Chin's plans on March 29, 2004, after he amended the TR-1 to include shoring, and issued two permits for the construction of the new buildings and the erection of a fence. He states that Homax conducted and directed the excavation work at the site, and that he did not perform any of the actual physical excavation or underpinning at the site, nor did he supervise Homax's work.

On July 15, 2004 the NYC Environmental Control Board (ECB) issued three violations to [*5]defendant Gang for failing to provide protection at the sides of the excavation based upon the creation of a 15 foot deep and 40 foot wide cut, without the required shoring and bracing; for the failure to post a permit at the site; and for the failure to provide a copy of the project plans at the time the inspection. The DOB issued a stop work order the same day.

Mr. Chin states that after that Homax commenced construction at the premises, he was not kept apprised of the status of the excavation work by either Homax, the property owners, or anyone else. He states that he was not notified of that a deep cut had been made so as to require shoring and bracing until after the July 15, 2004 violations had been issued. Mr. Chin further states that shoring and bracing are considered "controlled work," and that the owner and contractor were required to give him 72 hours advance notice of the commencement of such work, pursuant to Section 27-195 of the Administrative Code of the City of New York.

Mr. Chin states that after he was notified of Homax's failure to protect the plaintiff's building, he submitted a revised front elevation plan to the DOB which contained a preliminary plan in the event that underpinning became necessary. This plan contains the following Notes: "THE EXCAVATION/FOUNDATION CONTRACTOR SHALL RETAIN THE SERVICE OF AN INDEPENDENT ENGINEER TO REVIEW THE DESIGN INTENT OF THE DETAILS PROVIDED. THAT ENGINEER WILL PROVIDE SHOP DRAWINGS SIGNED AND SEALED UNDER AMENDMENT TO THE APPLICATION FOR PERMIT WHICH WILL BE SUBSTITUTED AS RECORD DESIGN DRAWINGS FOR MEANS AND METHODS OF THE EXCAVATION AND FOUNDATION OPERATIONS. THE INDECENT [SIC] ENGINEER WILL CONDUCT INSPECTIONS AT THE SITE AND PROVIDE REPORTS AS REQUIRED BY THE DEPARTMENT OF BUILDINGS FORSHORING AND BRACINGSTRUCTURAL STABILITYUNDERPINNINGSUB-G RADECONTROLLED FILLCOMPACTION OF GRADECONCRETETEST CYLINDERSDESIGN MIX"THE UNDERPINNING WILL BE REQUIRED ALONG THE FULL LENGTH OF BUILDING(CONTRACTOR TO VERIFY EXISTING CONDITIONS...."

Mr. Chin states that after he filed the revised drawing he was not advised of the status of the project. Pioneer asserts that it first noticed a crack on its building on July 23, 2004, and that on August 8, 2004 Homax damaged its retaining wall with the excavator. According to the project owners and Homax, the underpinning commenced on August 17, 2004 and was [*6]completed on August 27, 2004. Plaintiff alleges that this unauthorized underpinning caused further damage to its building. Mr. Chin states in his affidavit that he was not advised that said underpinning had commenced, and that he was not advised that said work was performed while a stop work order was in effect. He further states that he was not advised that Homax had commenced said work without first submitting the necessary TR-1 form and shop drawings for the underpinning. Mr. Chin states that he did not participate in, direct, supervise, or inspect said underpinning operation. He states that Homax was responsible for retaining an engineer to draw the underpinning plans and inspect the operations, and that Homax commenced this work prior to engaging an engineer.

On August 18, 2004, Mr. Gang entered into an agreement with Pioneer to repair the damage, which Gang stated was caused by "improper construction excavating activities which is currently being conducted at the site located at 37-40 103rd Street, Corona, New York, 11368." Gang agreed to repair and strengthen Pioneer's foundation wall at a later date, and an accepted legal responsibility for "any kind of damages or personal injuries" in the event of "further worsening conditions."

On September 17, 2004 the ECB issued a notice of violation to Mr. Xu for failing to comply with the prior stop work order. A second violation was issued to Gang for performing underpinning without a permit. On September 23, 2004, the ECB issued a notice of violation to Xu for failing to file a TR-1 prior to the start of the controlled work.

In September 2004, Mr. Chin met with Anthony Chuk, the president of Pioneer. Mr. Chuk is also employed by plaintiff as its operations manager. Mr. Chin states in his affidavit that at the time this meeting took place, the excavation and underpinning operations were completed, and that he was not aware of the damage to plaintiff's building until after it had occurred.

Mr. Chuk stated at his deposition that he has no information that Chin improperly prepared plans with regard to the construction project. He stated that the architect retained by Pioneer to inspect the damage to its building, never told him that Chin prepared plans improperly. He stated that the only basis for Pioneer's claim that Chin performed his work improperly was that the underpinning was performed without a permit, and without Pioneer's consent. Mr. Chuk further stated that he had no personal information to support Pioneer's claim that Chin had fraudulently altered documents and submitted them to the DOB, and that no one had told him that Chin had acted in this manner. Mr. Chuk states in his affidavit that the cracking and tearing of Pioneer's building occurred during the underpinning operation; that he met with Mr. Chin on September 7, 2004, at which time Chin falsely informed him that the underpinning and all of the work was legally performed according to the approved plan. However, at his deposition Mr. Chuk stated that he had no information that Mr. Chin was informed by the builder or anyone else that the underpinning was about to be performed.

Pioneer's building was inspected on several occasions beginning in late September 2004 [*7]by a professional engineer and an architect in connection with insurance claims and complaints made to the DOB. The professional engineer's sworn reports as well as the unsworn architect's letters, indicate that the damage to the Pioneer building was caused by the underpinning operation. These letters and reports are silent with respect to Chin's architectural design.

It is well settled that, in order to set forth a prima facie case of negligence, "a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries" (Engelhart v County of Orange, 16 AD3d 369, 371 [2005]; Marasco v C.D.R. Electronics Sec. & Surveillance Sys. Co., 1 AD3d 578, 580 [2003]). " A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury' " (Estate of Burke v Repetti & Co., 255 AD2d 483, 483 [1998], quoting Georgetti v United Hosp. Med. Ctr., 204 AD2d 271, 272 [1994]).

An architect's duty of professional care extends to both the client, and to those members of a limited class whose reliance on the service was, or at least should have been, specifically foreseen (Gordon v Holt, 65 AD2d 344 [1979]). The failure to use due care in design or supervision allows recovery of both tort and contract damages (Brushton-Moira Cent. School Dist. v Fred H. Thomas Associates, P.C., 91 NY2d 256 [1998]; Sears, Roebuck & Co. v Enco Associates, Inc., 43 NY2d 389 [1977]). A viable tort claim against a professional requires that the underlying relationship between the parties be one of contract or the bond between them so close as to be the functional equivalent of contractual privity (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417 [1989]). The relationship between an architect and the owner of abutting real estate may be considered the functional equivalent of privity, as the designers of a building understand that an abutting owner is depending on them to avoid damaging the abutting building.

Here, plaintiff does not allege that Chin's plans and drawings were improper, defective or faulty in any respect. Rather, plaintiff alleges in the first cause of action that all of the defendants were negligent in "performing the excavation and construction at the adjacent site," and "engaged in unauthorized underpinning work on plaintiff's premises." The fifth cause of action seeks a permanent injunction enjoining defendants from performing construction on the adjacent site. The tenth cause of action for professional malpractice alleges that Chin represented to plaintiff that the excavation and underpinnings were performed in compliance with the building specifications, under adequate supervision, with proper materials, and pursuant to all permits and approvals; that Chin intentionally and fraudulently altered documents submitted to the DOB; that following complaints to the DOB, Chin was ordered to complete the adjacent foundation wall; and that defendant neither obtained the appropriate work permits, submitted and/or obtained proper and approved plans for the work performed, performed the work in a proper and workman like manner, nor complied with the directives of the DOB inspector. Plaintiff alleges that defendant's actions, inactions and misrepresentations constitute malpractice.

The evidence presented establishes that Mr. Chin submitted plans and drawings to the [*8]DOB, and that in compliance with the DOB's directives, he submitted revised plans, which were approved by the DOB. In view of the fact that Pioneer's president Chuk conceded at his deposition that he had no knowledge of any fraudulent documents submitted by Chin to the DOB, that portion of the malpractice claim which alleges fraud is without merit.

Chin's agreement with Yu provides for scaled plans, including "structural and MEP for construction," to "arrange for all construction inspections and sign-offs" and to "filed [sic] all necessary controlled inspections." Although the agreement did not specifically require Chin to design the underpinning, the DOB required that shoring be included in the plans, and Chin submitted revised plans which were approved by the DOB. In addition, the General Notes included in Chin's plans make it clear that he expressly declined to take on any additional liability with respect to the actual performance of the excavation and bracing and any resulting damage to property or persons. There is no evidence that the plans submitted by Chin were inadequate, defective or improper.

Section 27-195 of the Administrative Code of the City of New York required that 72 hour written notice be given to Chin "before any work is commenced on an item of construction requiring controlled inspection...." Underpinning, not excavation, generally requires a controlled inspection (see Administrative Code of the City of New York § 27-724).

The evidence presented establishes that the co-defendants performed the underpinning without obtaining a permit, while the stop-work order was in effect, and without providing Chin with the requisite 72 hour notice.

The purpose of the 72 hour notice has been explained as follows: "[i]t is important that the registered architect or licensed professional engineer responsible for controlled inspections of a construction operation be alerted when work on that specific operation is to be commenced, so as to assure his presence at the jobsite when the controlled inspection should be performed" (Building Commissioner Joseph Stein's Memorandum in Support, Bill Jacket, Local Law 77 of 1972, Council Intro. No. 846). Plaintiff, in opposition to the within motion, has not presented any evidence that Mr. Chin received a 72 hour notice. In addition, plaintiff has failed to raise a triable factual issue with respect to such notice.

In the view of the fact that Chin was not given 72 hour notice of the underpinning, he had no duty to provide Pioneer with notice of the underpinning activity, and had no duty to oversee or inspect the underpinning work. In addition, there is no evidence the Chin was aware of the underpinning operation until after it had been performed by the co-defendants. Thus, whether Chin could have delegated any of his contractual or statutory duties to the engineer hired by Homax, is irrelevant.

Plaintiff's reliance on Section 27-165 of the Administrative Code, is misplaced. This section provides that "[n]o foundation or earthwork permit shall be issued unless and until at least five days prior written notice of the permit application shall have been given by the [*9]applicant to the owners of all adjoining lots, buildings and service facilities which may be affected by the proposed foundation work or earthwork operations." Mr. Chuk states in his affidavit that in May 2004 he was advised by Mr. Gang and Mr. Yu that they had obtained a permit to perform work at the site. Plaintiff does not claim that it was entitled to additional notice from Mr. Chin with respect to the excavation work.

Plaintiff's speculations regarding Chin's responsibility and duties with respect to the underpinning are insufficient to raise a triable issue of fact. "[A] motion for summary judgment may not be defeated by a response based on surmise, conjecture and suspicion" (Rendon v Castle Realty, 28 AD3d 532, 533 [2006] [internal citations and internal quotation marks omitted]). The failure to show compliance with the 72 hour written notice requirement, or Chin's awareness of the actual underpinning operation, bars a claim against Chin for the failure to notify Pioneer of a controlled inspection.

The evidence submitted establishes that Mr. Chin did not appear at the job site, perform any excavation or underpinning work, and that he did not supervise or direct such work. A defendant cannot be liable for negligence where, as here, there is "no proof that [this] defendant...participated in or knew of the damage that was being done by the other defendants who were excavating..." (Hoffman v Dyruff, 259 App Div 837, 838 [1940], affd 285 NY 695 [1941]). Plaintiff's negligence claim against Chin, therefore, is without merit.

Finally, plaintiff's claim of professional malpractice against Chin, must be dismissed as the failure to offer an expert affidavit is fatal to the claim against the architect (Sheehan v Pantelidis, 6 AD3d 251 [2004]; Columbus v Smith & Mahoney P.C., 259 AD2d 857, 858 [1999]; see also RCD Bldg., L.L.C. v Park Slope Condominiums, L.L.C., 2007 NY Slip Op 50035(U) [2007]).

In view of the foregoing, defendant Jung Wor Chin's motion for summary judgment dismissing the remaining first, fifth and tenth causes of action is granted.

Since a motion for summary judgment searches the record (CPLR 3212), all cross claims against Chin by the co-defendants for common-law contribution and indemnification are dismissed. Chin's counterclaim against the co-defendants for apportionment, contribution, and common law indemnification are also dismissed. That branch of Chin's counterclaim which seeks contractual indemnification is dismissed, as Chin only entered into a contract with Yu, and said contract does not contain an indemnification clause.

Dated: October 7, 2010

AUGUSTUS C. AGATE, J.S.C.