Maheras v Awan
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Maheras v Awan 2013 NY Slip Op 30673(U) March 28, 2013 Supreme Court, New York County Docket Number: 114296/2011 Judge: Margaret A. Chan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON41512013 [* 1] [* 2] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. Marqaret A. Chan Justice PART 5 2 1 14296/2011 INDEX MARK MAHERAS, DANA WHITTLE, CHRISTINA KELSEY, and ADRIAN SOLOMON, Plaintiffs, - vs. - AYAZ AWAN, NEW YORK BEST DEVELOPMENT, INC., HIGH RISE DEVELOPMENT ENTERPRISES, SABBA SALEEMI, K.T. SEUNG, OSCAR JACKSON, CLEMENT CHAMBERS, KNC ELECTRIC, NEW YORK CITY DEPARTMENT OF BUILDINGS, CHRIS WOLF, Defendants. APR 05 2013 Plaintiffs are owners of a certain property known as 261 West 137fhStreet, New York, NY. The basis of their action is the alleged faulty construction and renovation work done by the various contractor defendants. Relewmt to the motion at hand by the municipal defendants, New York City Departmcnt of Buildings (DOB) and one of its inspectors, Chris Wolf (Wolf), are plaintiffs allegations of them coininittiiig fraud and conspiring with co-defendants to defi-aud plaintifik, general negligence, and negligence under the thcory of respondeut superior. The municipal defendants moved pursuant to CPLR 321 I (a)(2),(5) and (7) to dismiss thc complaint on the grounds that it is time barred pursuant to General Municipal Law (j 50-i, failure to state a causc of action lor allegations of fraud and conspiracy, and negligence; and improper procedural review of an administrative determination. The remaining defendants are silent as to this motion. FACTS Pursuant to plaintiffs dissertation of the facts, it is learned that in March 2007, plaintiffs purchased the property as an investment and planned to do extensive rehabilitation and renovation. Plaintiffs engaged defendant Ayaz Awan (Awan), prcsident of dei endant New York Best Development (NY Best) to do the construction and rcnovation work. The reconstruction included a total demolition and gut rcnovation of the electric and HVAC systems. Through Awan, plaintifik hired defcndant K.T. Seung (Seung) as architect. Plaintiffs subsequently learned that Seung was an engineer, and not an architect. They charged that Chris Wolf and possibly others at the DOB, together with the contractor defendants schemed to defraud them (Aff in Opp p 5 712). [* 3] On December 3,2008, Wolf inspected the premiscs fi-omroolto basement. Plaintiffs were not prcsent at the inspection as Awan told thein rcsidents could not be prcsent. Wolf issued the Certificate of Occupancy (C of0)despite the inaiiy open and notorious violations, some that are even extrcinely hazardous. On September 7,2010, Wolf reinspected the premises. This time plaintiflMaheras was present, and pointed out the defects to Wolf. When Maheras realized Wolf was also the first inspector, Wolf brokc down , by his speech and conduct that he had been cxposed as a fraud, declaring unexpectedly that he was so sorry that lie had caused [them] so much turmoil (id at p 15 T[ 41). According to Maheras, Wolf confessed to overlooking the building codc violations, and gave hiin originals of the violations lie found, but did not submit, in the December 3, 2008 inspcction, so that plaintiffs would have a paper trail in possible f Liture litigation. Woll had told him that DOH inspectors were discouraged to find violations and that most inspectors werc not qualified or had enough time to conduct a thorough inspection. Wolf also told Mahcras that he had a personal relationship with Awan, who gave hini stock tips; he even had Awan s cell phonc number. Plaintiffs claim that due to the municipal defendants collusion with Awan, Seung and other defendants, they were caused to declare bankruptcy. Based on Wolfs break down, and other indicators, plaintifh surniised that the DOB must have been in cahoots with Awan and Seung s fraud and conspiracy. One such indicator of collusion is that Seung was able to somehow persuade the DOH to restore tlie building permit which had expired before the C of 0 was issued (id. pp 8-9). Seung was also able to get a DOB mechanical waiver at without submitting any mech<anicaldrawing or paperwork; yet DOB could not cxplain how that could be done. Plaintiffs charged that the C of 0 was improperly issued bccause there werc iiiultiple major construction and mechanical dcfects, and deduced that, if the defects werc uncovered before a proper C of 0 was issued, Awan and Seung could be forced outside their comfort zone with the coconspirators in the DOB (idat p 9 7 23). The municipal defendants corrected the facts with exhibits to reflect that no C 01.0 was issued after the December 3,2008 inspection due to Wolfs ob.jections. A tcinporary C of 0 was issued on January 16,2009 after an inspection by another inspector, and tlie final C of 0,cffective April 9,2009, was issued on April 4,2009 upon yet another inspcction by a diffcrcnt inspector (Defts Exhs. B, C, and U). Plaintif& filed a notice of claim on September 27,201 0, and the instant action on December 20, 201 1. DISC US SXON 1. Statutc of 1,iniitations Addressing first the Statute of Limitations argument, the municipal delendants assert that the plaintiffs ncgligence claims against them are time-barred pursuant to General Municipal 1,aw (GML) 5 5O-i[c], which provides plaintiffs with one ycar and ninety days from the date of the occurrence to coniinence an action. The municipal defendants posit that even if thc occurrence giving rise to the negligence claims arosc on thc later date of April 9,2009, when thc final C of 0 took eff ect, the action commenced on Deccmber 20,20 1 1, is untimcly. Maheras v Awan et. al. Index # 114296/201I Page 2 of 6 [* 4] Plaintiffs argue that Wolfs representations, made in bad faith, precluded the municipal defendants from asserting the Statute of Limitations defense. Quoting General Stencils, IIK v Chiuppa (1 8 NY2d125, 128 [1966]), plaintiffs argue that under thc doctrine ofequitablc estoppel, thc statute of liniitations defense cannot be used when the delay is caused by defcndanls affirmative wrongdoing. Plaintiffs claim that they learned of the collusion between Wolf and Awan on September 7,20 10, thus [tlhis [alction was tiincly conimenced on December 20,201 0 [emphasis added] (Pltfs Mcmo ofLaw p 12). A review of the summons and complaint shows that they were i l c d on December 20,201 1, not 20 10 . Assuming that it was a typographical crror, plaintiffs argumcnt is nonetheless uiiavailing as one year and ninety days from September 7, 2010 is Decenibcr 7, 201 1. That said, plaintiffs argument fails because the date o ¬the occurrcncc is the effective date the final C of 0,April 9,2009. Plaintiff s equitable estoppel argumcnt docs not serve them either bccause plaintiffs must show that subsequent and specific actions by defendants somehow kept them from timely bringing suit (Zumpuno v Quinn, 6 NY3d 666,674 [2006] [declining to cxtcnd ChwruZStencilsI;Nichols v Curtis, 2013 W , 1 11088 [lst Dept, Mar 19,20131). In the instant case, there is no showing that evcn in the I1 scenario that plaintiff would havc this court adopt - the accrual date being the date from Wolf s allcged confession -the municipal delendants did anything subsequent to that to kcep them from commencing the action. Citing Kiernan v Thompson (134 AD2d 27 [3d Dept 19871 qfd 73 NY2d 840 [1998]), plaintiffs also argucd that the negligence is continuous, meaning that the statute of limitations renews cach day as the condition exists. Tn Kiernan, plaintiffwas injured when she tripped on a crack on the sidewalk that the City created when it rcmovcd a tree stump two years earlier. The Appellate Division, Third Department found that tlie City created an unsafe condition when it removed the tree stump. Consequently, notice of the defect was not required. And as the City has a duty to maintain its public sidewalks in a safe condition, failure to do so is a continuing breach of its duty and each day the unsafe condition existed served to renew the accrual of time for purposes of GML 5 50- i (id.134 AD2d at 29-30). However, the Court of Appeals, which affirmed the Appcllate Division s order, nonetheless found the Appellate Division had erred in construing a separate cause of action based on the City s removal of the tree stump rather than its failure to propcrly maintain the sidcwalk. The Court of Appeals reasoned that if the negligcncc was the discrete act of removing the tree stump, the statute of limitations had long expired [or purposes of GML $ 50-i (Kiernun, 73 NY2d 840, 842). Flere, the duty of the DOB is to approve or disapprove an application and certify that the building substantially conforms to plans and codes (see Admin. Code $ 28-1 18.4 et ,sey). Plaintiffs do not suggest that the DUB has a continuing duty after the C of 0 is issued. Thus, just like the removal of tlie tree stump, the occurrence of the event giving rise to plaintiff? claim is the discrete act of issuing the final C of 0, and not the duration of the C of 0 (,we Klein v Cily of Yonkerx, 53 NY2d 101 1 [1981 I). Accordingly, the fifth cause of action is dismissed bccause it is time barrcd. The municipal defendants inform that plaintiffs filed a notice of claim on September 27,2010, which was not resolved in plaintiffs favor. Maheras v Awan et. al. Jndex # 114296/201 I Page 3 of 6 [* 5] As to plaintiffs alternative request to excuse the delay, they base the delay on their prior attorney s law ol lice failure. Howevcr, t h e is nothing to substantiatc this claim except for plaintiffs conjecture. Considering that tlic prior attorneys timely filed notice of claim met with disfavor, it cannot be said that the law office failure supposition carries much weight. In short, therc is no good causc shown hcre to grant their request. 11. Fraud and Conspiracy to Commit Fraud The second causc of action in the mended complaint is for Iraud and conspiracy to commit fraud. To make out a prima facie case of fraud, the complaint must contain specific and detailed allegations of a misreprescntatioii of material fact, falsity, scienter, reliance and injury (see CPLR 3016[b]; Small v Lorillard Tobacco Co., 94 NY2d 43,57 [ I 9991). The basis of thisclaim is that the municipal defendants engagcd in unlawful policies and practices that resulted in fraudulent inspections (Pltf s Opp. Exh. T, p 18 7 1 12). The allegations rccount Awan s proinisc that a C of 0 would be issued in weeks; hwan s lie to them that residents could not be present for the 130B inspection; W o l f s failure to identify obvious dangers and hazards; DOB s tactics of pressuring its inspectors such as Wolf to pass off violations; WolPs participation and conspiracy to furthcr Awan s fraudulent plans by bypassing violations; DOB s allowing Seung to circumvent laws related to building permits and obtaining waivers; their reliance on DOB s policies and mission statement, which reliance was corroborated by the issuance of. a h a 1 C of 0 ; Awan s representation that the air conditioning units wcrc properly installed or DOB would not have issued the C of 0; Awan s loud admonition to his worker to lie to plaintiffs about the installation of the air conditioner; Wolfs confession to plaintiff Maheras that upon learning of the construction problems, apologized for causing so much turmoil , taking responsibility for failing to properly inspect the premises, admitting to a personal relationship with Awan, and claiming Awan did good work; and disclosing the horrific policics of and understaffing at DOB that encouraged unscrupulous contractors to flout the system (id.at p 23 7 141). In reviewing the allegations, it appears that they fall under two categories: (1) Awan s misrepresentations, and (2) DUB S policics. Awan s alleged misreprcsentations cannot be attributed to thc municipal defendants. The elcinents of a cause of-action sounding in fraud are a material iiiisrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiablc reliance upon the misreprescntation, and damages (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; Infronu v Huntington Learning Ctrs., lnc., 78 AD3d 896, 898 [2d Dept 20101). The inferences that conncct Awan and Seung to the DOB do not show that the DOB participated in or even knew about Awan or Seung s allcged misrepresentations. As for DOB s policies, plaintiffs appear to argue that they do not correspond with its mission statement. Plaintiffs attempt to associatc Awan with Wolfas co-conspirators to defraud them is l ound in their allegation that Wolf had Awaii s cell phone number in his cell phone, his apology for plaintiffs turmoil and his admission of his initial improper inspection. Having a contractor s ccll phonc number, one whose site was to be inspected, or getting stock tips occasionally from him, and Maheras v Awan et. al. Index # 1 14296/20 I I Page 4 of 6 [* 6] cxpressing sympathy for plaintiffs problems, do not point to a conspiratorial relationship between Awan andwolf. Wolfs admission to a improper inspection ties his work to the pressure he felt from i his supervisors which speaks to DOB policies, not conspiracy. Nor does the mechanical waiver obtained by Seung from the DOT3 form a conspiratorial association. General allegations that the policies do not carry out its mission statemcnt, or issuing unwarranted C of 0, or granting waivers without required documents arc insufficient to support a causc of action sounding in fraud (see Infrona, 78 AD3d at 898). Ifplaintiffs intended its conspiracy to defraud claim to be an independcnt cause of action, then, it also fails because New York does not recognize a civil conspiracy to commit a tort as an independent cause of action (see H o @ w v Orrick, Herringlon & Sutcliffe, LLP, 85 A133d 457,458 [lst Dept 201 11). Accordingly, the second cause of action is dismissed. 1JT. Netlligence and Kcspondcat Superior Turning to plaintiffs negligence claims, defendants argue that they arc absolutely immune froin liability because tlic issuance of a C of 0 is an excrcisc of discretion, and cite more than a few cases that speak to this axiom (see e.g. 7 ango v Tulevach, 61 NY2d 34,40 [1983]; Mon v Cily ofNcw York, 78 NY2d 309 3 13 [1991]; Haddock v City qfNew York, 75 NY2d 478.484 119901; Rolhkamp v Young21 AD2d 373,375 12d Dept 19651, qffd 15 NY2d 831 119651;Kussn Demolilion fnc. v City oJ New York, 2012 NY Slip Op 04237 [2d Dept, May 3 1, 20121; see also California Suites, Inc. v Rus,so Demolilion h c . , 98 AD3d 144, 155 [lsl Dept 20121). Plaintiffs ineinorandum of law cites none. h e yrely solely on their complaint to show that they havc sufficiently made out their argument that the issuance of a C of 0 was not an cxcrcise of discretion because Wolfcolludcd with Awan and Seung in his inspection of the premises. And since Wolf is an employee oftlie DOH, the DOB is liable under the theory of respondeui superior. Even if assuming the hearsay statcmcnts forming plaintiffs allegations are true, there is still no showing of a conspiracy as discussed supra. Because the municipal defcndants have absolute immunity from liability for the tort claims, the fifth cause of action, which was time barred in any event, and sixth cause of action are dismissed. 1V. CP1,R Article 78 Finally, the municipal defcndants argue that the proceeding should be dismissed because the claims against them challenges the issuance ofa C of 0 , which should be properly brought undcr an Article 78 proceeding. Plaintiffs respond that as monetary relief is the objective of their suit, an Article 78 proceeding is inappropriate and futile. Typically, a claim against a governmental agency or agent is brought under CPLR Article 78 (see Califi?miaSuites,fnc. v Hus,m~ Demolition Inc., 98 AD3d 144,153, quoting New York City Health & IIosps. Corp. v McBarnelfe, 84 NY2d 194,201 [ 19941). Allegations that the govcrnrnental agency failed to follow proper procedures should be addrcssed in a special proceeding under CPLR Article 78 (see Culifornia Suites, Inc. at 154). Here, taking thc fraud and conspiracy to commit fraud Maheras v Awan et. al. Index # 114296/2011 Page 5 of 6 [* 7] allegations aside, which as previously discussed were found lacking, the crux of plaintiffs complaint against the municipal defendants was that they did not abide by their niission statement in carrying out their policies or execution of their procedurcs. The allegations ranged from the DOR being understaffed; retaining untrained inspectors; its supcrvisors coercing and encouraging improper inspections; improper issuance ofC of 0 s; and issuance of a mechanical waivcr without drawings all spcalc to a departure lrom policy, procedurc, guideline or mission statement. These allegations were raised to challenge the DOB s determination in issuing a final C of 0. A challenge such as this rcquires an administrative review of the DOB s alleged global failurc and systemic breakdown olthe DOB policies and procedures (Maheras Aff, pl 1 1130). The propcr vehicle by which to address that challenge is brought under CP1,R Article 78, which is subject to a four-month statute of limitations (CPLR 4 217; see Culifornirr Suites, Inc. at 154). As such, plaintiffs claims against the municipal defendants are time-barred. Accordingly, the municipal defendants motion is granted in its entirety. The complaint against New York City Department of Buildings and Chris Wolf is dismissed as a matter o ¬ law. As this action no longer involves municipal def endants it must be transferred out of this City Part to an appropriate IAS Part. This constitutes the decision and order of thc court. Dated: March 28, 2013 L Margaret A. Chan ,J.S.C. re NEW YOI-iti COUNTY CLERKS OFFICE Maheras v Awan et. al. Index # 11429612011 Page 6 of 6
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