Dormitory Auth. of the State of N.Y. v Samson Constr. Co.

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Dormitory Auth. of the State of N.Y. v Samson Constr. Co. 2013 NY Slip Op 32649(U) October 17, 2013 Sup Ct, NY County Docket Number: 403436/06 Judge: Eileen Bransten Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 10/23/2013 1] INDEX NO. 403436/2006 NYSCEF DOC. NO. 548 RECEIVED NYSCEF: 10/23/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. EILEEN BRANSTEN J.S.C. PRESENT: PART -----3 Justice Index Number: 403436/2006 L/O 3LJ 3'=' /l.DD~ MOTION DATE {, l_l D) I 3 · DORMITORY AUTHORITY vs. SAMSON CONSTRUCTION SEQUENCE NUMBER : 014 INDEX NO. I MOTION SEQ; NO. ~ I 'j REARGUMENT/RECONSIDERATION The following papers, numbered 1 to~ , were read on this motion to/for Notice of Motion/Order to Show Cause - Affidavits - r-z: A. Ctj \..f ~; Exhibits Answering Affidavits- Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _.__ _ __ I No(s). _z... ____ I No(s). _3 ____ Upon the foregoing papers, it is ordered that this motion is IS DECIDED IN ACCORDANCE WITH ACCOMPANYING MEMORANDUM DECISION w () j:: (/) :::> ., 0 IC w a::: a::: w w IL a:: >- ;.:,, _J _J ~ z :::) 0 IL (/) () ct: w w a:: I- 3; w C> z a::: ;: ~ 0 w (/) _J .... 0 1- < IL 0 0 - :c z w § a:: ::Ii~ Dated: \ (}:)± - \~ r"i.:(i.--<-- --:-~ 1. CHECK ONE:..................................................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ............... ¢ ¢ ¢.............................. 6 NON-Fl,NAL DISPOSITION 0 CASE DISPOSE~ ,_...... 0 GRANTED [ZJ DENIED OOTHER 0 GRANTED IN PART 0 SUBMIT ORDER 0 SETTLE ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE ODO NOT POST [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART THREE ------------------------------------------------------------------)( DORMITORY AUTHORITY OF THE STATE OF NEW YORK, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION and THE CITY OF NEW YORK, Plaintiffs, -againstSAMSON CONSTRUCTION CO. (a/k/a SAMSON CONSTRUCTION COMPANY, SAMSON CONSTRUCTION CO., INC. and SAMSON CONSTRUCTION, INC.) and PERKINS EASTMAN ARCHITECTS, P.C., Defendants. Index No. 403436/06 Motion Seq. Nos.: 014 Motion Date: 6/10/13 ------------------------------------------------------------------)( SAMSON CONSTRUCTION CO., INC., Third-Party Plaintiff, -againstHAYWARD BAKER, INC., VACHRIS ENGINEERING, P.C. and AKRF ENGINEERING, P.C., Third-Party Defendants. Third-Party Index No. 590732/08 ------------------------------------------------------------------)( VACHRIS ENGINEERING, P.C., Fourth-Party Plaintiff, -againstMUESER RUTLEDGE CONSULTING ENGINEERS, Fourth-Party Defendant. ------------------------------------------------------------------)( Fourth-Party Index No. 591020/09 [* 3] ------------------------------------------------------------------X PERKINS EASTMAN ARCHITECTS, P .C., Second Third-Party Plaintiff, -againstSEVERUD ASSOCIATES CONSUL TING ENGINEERS, P .C., GILBANE BUILDING COMPANY, TDX CONSTRUCTION CORPORATION, GILBANE BUILDING COMPANY/TDX CONSTRUCTION CORPORATION, A JOINT VENTURE, and PILE FOUNDATION CONSTRUCTION COMPANY, INC., Second Third-Party Defendants. Second Third-Party Index No. 591133/10 ------------------------------------------------------------------){ SAMSON CONSTRUCTION CO., INC. And PILE FOUNDATION CONSTRUCTION COMPANY, INC., Third Third-Party Plaintiffs, -against- Third Third-Party ROADWAY CONTRACTING, INC., SOIL SOLUTIONS, INC., CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., KLINE IRON & STEEL CO., INC., A.J. MCNULTY & COMPANY, INC. and SPX CORPORATION, Third Third-Party Defendants. Index No. 590318/12 ------------------------------------------------------------------){ EILEEN BRANSTEN, J.: In motion sequence 014, Plaintiffs Dormitory Authority of the State of New York ("DASNY"), New York City Health and Hospitals Corporation ("HHC") and the City of New York (the "City") (collectively "Plaintiffs") seek leave to reargue Defendant Perkins Eastman Architects P.C. 's ("Perkins") cross-motion for summary [* 4] Index No. 403436/2006 Page 3of7 Dormitory Authority, et al. v. Samson Constr. Co., et al. judgment dismissing Plaintiffs breach of contract and professional malpractice claims (motion sequence 011 ). Specifically, Plaintiffs seek to reargue the issue of whether the City is a third-party beneficiary of the contract between Perkins and DASNY, and therefore, whether the City can assert breach of contract and malpractice claims against Perkins. For the reasons that follow, Plaintiffs' motion is denied. This action arises out of the construction of a forensic biology laboratory (the "DNA Lab"), for the New York City Office of the Chief Medical Examiner, on New York City-owned land adjacent to Bellevue Hospital, in the vicinity of First Avenue and East 26th Street in Manhattan. Plaintiffs Dormitory Authority of the State of New York ("DASNY"), New York City Health and Hospitals Corporation ('~HHC"), and the City of New York (the "City") allege, inter alia, that defendant Perkins Eastman Architects, P.C., the project's architect, failed to perform its contractual obligations and failed to exercise reasonable care in performing its contracts, causing damage to adjacent structures and facilities, including the C&D Building of Bellevue Hospital. Bellevue Hospital is operated by HHC. The portion of Bellevue Hospital known as the C&D Building is located directly north of the site. The planning, design, and construction of the DNA Lab was financed initially and managed by DASNY, pursuant to [* 5] Dormitory Authority, et al. v. Samson Constr. Co., et al. Index No. 403436/2006 Page 4 of7 a project management agreement between DAS NY and the City dated August 2, 2001 (the "Project Management Agreement"). Under the Project Management Agreement, DASNY was authorized to enter into contracts with consultants, construction contractors, and a construction manager. In an agreement dated July 25, 2001 (the "Perkins Eastman Contract"), DASNY retained Perkins Eastman as the architect for the project. Perkins Eastman was required to prepare construction documents and cost estimates and to provide construction administration. Plaintiffs allege that the adjacent C&D building began to settle when defendant Samson Construction Co., the excavation and foundation contractor, began driving piles as part of its foundation work. This settlement continued until March 2004, delaying the construction project and damaging structures adjacent to the project site. Plaintiffs attribute the settlement, delays, and resulting costs, in part, to Perkins' purported failure to complete an accurate analysis of the existing foundation of the C&D Building and related subsurface conditions. On February 2, 2007, Plaintiffs filed a complaint asserting, inter alia, breach of contract and professional negligence claims against Perkins. Perkins then moved for summary judgment, seeking dismissal of those claims, which was granted on February 27, 2013. The Court's dismissal was premised on the conclusion that HHC and the City were [* 6] Dormitory Authority, et al. v. Samson Constr. Co., et al. Index No. 403436/2006 Page 5 of7 not intended third-party beneficiaries of the Perkins-DASNY contract. Plaintiffs thereafter moved for reargument under CPLR 2221. II. Discussion Plaintiffs now seek reargument regarding the Court's third-party beneficiary determination. Specifically, Plaintiffs assert that the City is a third-party beneficiary of the Perkins and DASNY contract and that the City's breach of contract and malpractice claims are therefore viable against Perkins. "A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." Foley v. Roche, 68 A.D.2d 558, 567 (1st Dep't 1979); see also CPLR 222l(d)(2); McGill v. Goldman, 261 A.D.2d 593, 594 (2d Dep't 1999); Opton Handler Gottlieb Feiler Landau & Hirsch v. Patel, 203 A.D.2d 72, 74 (1st Dep't 1994). It is not designed to provide the unsuccessful party with successive opportunities to argue once again the very issues previously decided. William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 28 (1st Dep't 1992), Iv. dismissed in part, denied in part 80 N.Y.2d 1005 (1992); Bliss v. Jaffin, 176 A.D.2d 106, 107-08 (1st Dep't 1991). Moreover, leave to reargue is also not an opportunity to present arguments different from those originally asserted. See Foley, 68 A.D.2d at 567-68. [* 7] Dormitory Authority, et al. v. Samson Constr. Co., et al. Index No. 403436/2006 Page 6of7 Here, Plaintiffs merely restate arguments that were considered and rejected in the original decision. Plaintiffs argue once again that the City should be deemed a third-party beneficiary of the Perkins-DASNY contract. These arguments were presented in Plaintiffs' briefing on motion sequence 011, see Docket No. 426 (Plaintiffs' Memorandum of Law in Opposition to Perkins' Cross-Motion to Dismiss and for Summary Judgment) at 11-15, and were addressed in the Court's February 27, 2013 decision. Thus, Plaintiffs' arguments here are insufficient to grant a motion for reargument. See Pro Brokerage, Inc. v. Home Ins. Co., 99 A.D.2d 971, 971 (lst Dep't 1984); Foley v. Roche, 68 A.D.2d at 567; see, e.g., O'Kelly v. North Fork Bank, 2008 WL 3243826, 2008 NY Slip Op 32153[U], at *7 (Sup. Ct. Nassau Cnty. July 21, 2008) (denying motion for reargument of opposition to motion to dismiss the plaintiffs' claims where "the same arguments advanced in support of reargument were made by the plaintiffs in support of their original cross motion, considered by the Court and rejected in a detailed decision"). (Order follows on the next page.) [* 8] Dormitory Authority, et al. v. Samson Constr. Co., et al. Index No. 403436/2006 Page 7 of? III. Conclusion Accordingly, it is ORDERED that Plaintiffs' motion for reargument is denied. Dated: New York, New York 2013 October a-, ENTER: C' \ ... ~ ~ . ~r--_ '~

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