1056 57, LLC v BHC Constr. & Dev., LLC
Annotate this CaseDecided on March 21, 2013
Supreme Court, Kings County
1056 57, LLC, 1060 57, LLC and 1064 57, LLC, Plaintiffs,
against
BHC Construction & Developers, LLC, Allboro Subsurface Corp., BZR Piping & Heating, Inc., d/b/a Complete Piping and Heating, Friedman P.E. and Klein Levin Associates, Defendants.
500955/12
Plaintiff Attorney:Aboulafia Law Firm, LLC, Lincoln Building, 60 East 42nd Street, Suite 2231, New York, NY 10165
Defendant Attorney for BHC Construction & Developers: Litchfield Cavo, LLP, 420 Lexington Avenue, Suite 2104, New York, NY 10170
David I. Schmidt, J.
Upon the foregoing papers, defendant Friedman, P.E., moves for an order pursuant to CPLR 3211(a)(1) and (7) dismissing the plaintiffs' complaint.
Factual Background
Plaintiffs 1056 57, LLC, 1060 57, LLC and 1064 57, LLC are corporations that collectively own property located at 1056, 1058, 1060, 1062, 1064 and 1066 57th Street in Brooklyn, New York. Plaintiffs entered into a contract with defendant BHC Construction & Developers, LLC (BHC) to act as the general contractor to complete construction work at a property located at 1058, 1060, 1064 and 1066 57th Street, in Brooklyn, New York. BHC hired defendant Allboro Subsurface Corp. (Allboro), a subcontractor, to perform work at the premises. BHC also retained defendant BZR Piping & Heating, Inc. (BZR) to perform pluming work, and Klein was hired to perform engineering work at the premises. Pursuant [*2]to a letter agreement, defendant Friedman P.E. (Friedman) was hired by BHC to design architectural plans for the project which included the construction of six new three family residential buildings at the premises.
The plaintiffs 1056 57, LLC, 1060 57, LLC and 1064 57, LLC (plaintiffs) commenced the within action alleging that all of the defendants breached their respective duties to the plaintiffs and were negligent resulting in damages sustained to the property as a result of the severe sewer and building drain backup that occurred on or about September 16, 2010. Plaintiffs seek to recover the sum of at least $253,221.74. With respect to Friedman, plaintiffs alleged that he negligently designed architectural plans for the subject premises and improperly designed the sewer pumps and drainage system. In its answer, BHC has asserted a cross-claim against Friedman for, inter alia, contribution and common-law and contractual indemnification. Friedman now moves to dismiss the plaintiffs' complaint pursuant to CPLR 3211(a)(1) and (7).
Discussion
In support of the motion, Friedman argues that the documentary evidence establishes that he was not responsible for or involved in the design, construction, installation and/or inspection of the sewer or backup drainage system at plaintiffs' premises. In this regard, Friedman refers to a written agreement, dated November 7, 2007, pursuant to which Friedman was retained by BHC Construction to provide professional architectural engineering services in connection with the construction of six three family residential buildings. Friedman points out that the agreement specifically states that he was not responsible for, had no control of, and was not in charge of the construction means, methods, techniques or sequences of procedures for safety of precautions in connection with the work. Further, Friedman notes that the contract expressly states that all "[s]urveys, tests, inspections, structural engineering or plans, specialized foundation plans, underpinning sheeting, shoring, piles, elevator, sewer, sprinkler plans, HVAC or other mechanical plans and filing, expediter fees, etc., if required, to be paid directly by owner".
Additionally, Friedman has submitted documentation/applications filed with the New York City Department of Buildings (DOB), entitled Sewer Self Certification, dated December 12, 2007 and August 5, 2008, which were both signed by Boris Levin, P.E., a person not affiliated nor employed by Friedman. Friedman further states that he did not prepare plans submitted to the DOB with respect to the design, installation and/or construction of the sewer system and backup drainage system for the project. Further, Friedman states that he was not retained or required to perform any controlled inspections as required by the DOB for the project. Friedman therefore argues that the documentary evidence clearly establishes that he was not responsible for nor created or caused any defective conditions regarding the sewer and drainage system on the premises which allegedly caused the damages to the plaintiffs' property.
In opposition, plaintiffs argue that Friedman was responsible for the architectural plans for the subject premises, which included the plumbing designs of the buildings. [*3]Plaintiffs contend that Friedman's architectural designs were negligently drawn. Plaintiffs have submitted the affidavit of Jeffrey Trooder, a purported expert in Mechanical Engineering, contracting and plumbing, who conducted an inspection on December 17, 2010 of the subject premises to access the cause of the damages to the plaintiffs' property. Trooder opined that Friedman's architectural plans failed to accurately gauge the grade level and pitch for the subject premises so as to allow for the proper gravitation of fluids to the public sewer, and that the plans also failed to include sewage ejectors which were necessary because of the grade level.
Plaintiffs have also submitted a New York City DOB document which lists Friedman as the applicant for various jobs performed on the subject premises ranging from December 12, 2007 to September 20, 2010. Lastly, plaintiffs argue that Friedman's motion to dismiss is premature and that further discovery is necessary to understand exactly what role Friedman played in the cause of the resulting damages.
BHC and Klein also oppose the motion by Friedman arguing that he has failed to meet his burden under CPLR 3211(a)(1) in that the documentary evidence does not conclusively establish a defense to the asserted claim. Boris Levin, a principal of Klein, avers in his affidavit, which is submitted herein, that the installation of the plumbing system was performed in accordance with Friedman's approved plans, and that Friedman was required to sign off on the plans or they would be considered incomplete or not approved. Defendants additionally argue that Friedman's motion is premature at this stage of the proceedings and should be dismissed.
A CPLR 3211(a)(1) motion to dismiss a complaint based on documentary evidence " may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law' " (Stein v Garfield Regency Condominium, 65 AD3d 1126, 1128 [2009], quoting Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; Wild Oaks, LLC v Joseph A. Beehan, Jr., Gen. Contr., Inc., 77 AD3d 924 [2010]). Further, "[i]n order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996—997 [2010]).
Based upon the foregoing, the court finds that the documentary evidence proffered by Friedman does not utterly refute plaintiffs' factual allegations. Here, Friedman relies upon a letter agreement, pursuant to which he was retained to provide architectural services for the premises owned by plaintiffs, and two DOB Sewer Self Certification documents, which were signed by another professional engineer. Contrary to Friedman's contention, these documents do not clearly and unequivocally establish that he was neither responsible for nor undertook any responsibility for the design and/or approval of the plans for the sewer and drainage system located at the subject premises. It is undisputed that the written agreement between Friedman and BHC, expressly stated that Friedman was not responsible and had no control of construction means or methods in connection with the work. Although the agreement further stated that the owner (plaintiffs) were required to pay for all surveys, tests, [*4]inspections, structural engineering or plans, including but not limited to sewer and sprinkler plans, if required, it is not clear whether such plans fell within the purview of Friedman's architectural engineering services in connection with the construction of the six three family residential buildings. Although Friedman claims that he was not responsible for the design of the sewer or backup drainage system at the property, the written agreement does state that "plumbing plans and applications as required for submission to the Department of Buildings" are included in the services to be provided by Friedman. Based upon a review of the parties' submissions herein, it is unclear whether any part of the design of the subject sewer and drainage system fell within the scope of Friedman's responsibilities for the "plumbing plans" of the project.
Additionally, the court notes that the documentary evidence proffered by Friedman that another engineer signed the "Sewer Self Certification" does not conclusively establish as a matter of law that Friedman had absolutely no involvement with the design of the sewer/drainage system at the premises. Accordingly, that branch of Friedman's motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) is hereby denied (see Stein v Garfield Regency Condominium, 65 AD3d 1126, 1128 [2009]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37 [2006]).
That branch of Friedman's motion seeking to dismiss plaintiffs' complaint as against him on the ground that the complaint fails to state a cause of action is also denied. "When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Sokol v Leader, 74 AD3d 1180, 1180—1181 [2010]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Sokol, 74 AD3d at 1181[internal quotation marks omitted]; see Nonnon v City of New York, 9 NY3d 825, 827 [2007]). " Whether a plaintiff can ultimately establish its allegations is not part of the calculus' " (Sokol, 74 AD3d at 1181, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). Applying these principles here, the court finds that the allegations set forth in the complaint, construed liberally, state a valid cause of action to recover damages for negligence on the part of Friedman in the architectural design of the sewer and drainage system.
In sum, Friedman's motion to dismiss the complaint is denied in its entirety.
The foregoing constitutes the decision and order of the court.
E N T E R,
J. S. C.
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