Moskowitz v Tory Burch LLC

[*1] Moskowitz v Tory Burch LLC 2017 NY Slip Op 50890(U) Decided on July 3, 2017 Supreme Court, New York County Reed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 3, 2017
Supreme Court, New York County

Herbert Moskowitz d/b/a MANHATTAN REALTY COMPANY, Plaintiff,

against

Tory Burch LLC, SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIRONMENTAL SURVEYING & LANDSCAPING ARCHITECTURE PPC., and NEW YORK CITY DEPARTMENT OF BUILDINGS, Defendants.



159599/15



For Plaintiff:

Peluso & Touger, LLP

70 Lafayette Street — 2nd Floor

New York, NY 10013

By: Carl T. Peluso, Esq.

For Defendant Skanska USA Building:

Fabiani Cohen & Hall LLP

570 Lexington Avenue, 4th Floor

New York, NY 10022

By: Tara A. Johnson, Esq.

For Defendant Tory Burch:

Wasserman Grubin & Rogers, LLP

1700 Broadway

New York, NY 10019

By: Richard Wasserman, Esq.

For Defendant Tory Burch:

Boies, Schiller & Flexner LLP

570 Lexington Avenue

New York, NY 10022

By: Marc V. Ayala, Esq.

For Defendant Langan:

Lewis Birsbois, Bisgaard & Smith LLP

77 Water Street, Suite 2100

New York, NY 10005

By: Steven Montgomery, Esq.

For Defendant Thornton Tomasetti:

Carroll McNulty & Kull LLC

570 Lexington Avenue, 8th Floor

New York, NY 10022

By: Joseph P. McNulty, Esq.
Robert R. Reed, J.

This is a dispute between neighbors concerning a construction project at 151 Mercer Street in Manhattan (the Project). Plaintiff owns the building located at 153 Mercer Street (the Building or 153 Mercer), and seeks compensation for an alleged injury to the Building caused by the construction work being performed at the Project at 151 Mercer Street (151 Mercer).

Tory Burch LLC (TBLLC) is the ground lessee at 151 Mercer. Defendants SKANSKA USA Building Inc. (Skanska Building), Thornton Tomasetti, Inc. (Thornton) and Langan Engineering Environmental Surveying & Landscaping Architecture PPC (Langan) are involved in the building process at 151 Mercer. Previously in this case, the complaint was dismissed as against the New York City Department of Buildings (DOB).

Plaintiff moves for summary judgment on the sixth (breach of contract), seventh (strict liability) and eighth (attorneys' and experts' fees) causes of action of the complaint, and for an inquest on damages. In support of its motion, plaintiff provides the affidavit of its employee, Robert Moskowitz, who states that the Building is over 130 years old and has landmark status. Moskowitz avers that TBLLC hired defendant Skanska Building as the general contractor for the Project, to perform the excavation, foundation and construction work. Moskowitz also avers that TBLLC hired Thornton, which designed the building and supervises construction, including the foundation work, and Langan, to advise and consult regarding ground and subsurface conditions, excavation and foundation construction, and to monitor excavation and the buildings adjacent to 151 Mercer, to protect them from damage.

Moskowitz states that, in October 2014, defendants dug full depth test pits to determine the depth of the bottom of the foundation of the Building.[FN1] Plaintiff entered into a written license agreement with TBLLC and Skanska Building on April 2, 2015 (the License), which allowed the placement and removal of devices at 153 Mercer to monitor vibration and movement.

Moskowitz avers that defendants began drilling piles at 151 Mercer, adjacent to 149 Mercer Street, until DOB issued a violation and stop work order (SWO) on June 11, 2015. Moskowitz further avers that defendants then moved to the other side of the 25-foot wide 151 Mercer lot, and began drilling adjacent to 153 Mercer. Plaintiff concludes that, by using the same methods and procedures for drilling piles earlier used on the 149 Mercer Street side of the lot, defendants damaged the Building. Moskowitz states that the drilling caused vibrations and movement of plaintiff's building, in excess of that permitted by a DOB technical policy and procedure notice (TPPN 10/88), which requires monitoring of adjacent buildings in landmarked districts in order to alert developers of excessive vibration and movement of adjacent buildings, as such phenomena are warning signs of damage. Moskowitz further states that, on June 24, 2015, plaintiff was informed that Langan had halted construction at 151 Mercer. He avers that DOB inspected 151 Mercer on June 25, 2015, and issued an SWO the next day.

Moskowitz avers that, on June 25, 2015, plaintiff inspected its building with elevator service company Thyssenkrupp, and submits an unsworn letter from Thyssenkrupp.[FN2] Plaintiff also submits copies of two unsworn reports, on Thornton's letterhead. Plaintiff states that the July 30, 2015 Thornton report was provided to DOB, and obtained by plaintiff through a freedom of information request, and that the other report, dated August 7, 2015, was provided to plaintiff. The July 30, 2015 report identifies the cause of certain damages to the Building as differential settlement and indicates that movement at 153 Mercer appeared to have taken place in June 2015. Plaintiff argues that in the Thornton reports "defendants acknowledge that Skanska Building's drilling of piles at 151 Mercer Street led to damages to plaintiff's building" (Moskowitz moving affidavit, ¶ 22). Moskowitz avers that the Building's interior doors are also jammed and cannot be opened, which he attributes to the Building's displacement, and that plaintiff has incurred fees and lost rent, including as a result of rent reductions to tenants to compensate for the loss of the elevator.

Plaintiff argues that all of the defendants are strictly liable for damage to the Building under section 28-3309.4 of the Administrative Code of City of New York (Section 28-3309.4). Section 28-3309.4, titled "Soil or foundation work affecting adjoining property," provides that:

"Whenever soil or foundation work occurs, regardless of the depth of such, the person who causes such to be made shall, at all times during the course of such work and at his or her own expense, preserve and protect from damage any adjoining structures, including but not limited to footings and foundations, provided such person is afforded a license in accordance with the requirements ofSection 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the soil or foundation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of such adjoining property, who shall be afforded a similar license with respect to the property where the soil or foundation work is to be made."

The parties dispute whether Section 28-3309.4 imposes strict liability. In American Sec. Ins. Co. v Church of God of St. Albans (131 AD3d 903, 905 [2d Dept 2015]), the Second Department construed Section 28-3309.4 as "impos[ing] absolute liability upon the person who causes an excavation to be made "(id. [citation omitted]; see Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984] [absent a ruling in their own department, " the doctrine of stare decisis requires trial courts . . . to follow precedents set by the Appellate Division of another department"]).[FN3]

In opposition, TBLLC does not dispute that it caused excavation work. However, defendants argue that plaintiff has not demonstrated entitlement to judgment under Section 28-3309.4 as it has not produced admissible evidence that the alleged injury was caused by their conduct or by conduct that occurred after the License was issued. TBLCC argues that plaintiff has not demonstrated that the elevator was in working order prior to its shutdown. In reply, plaintiff argues that it met its moving burden to demonstrate causation and has demonstrated that the elevator was not damaged prior to the May and June 2015 drilling of piles.

Concerning the timing of the drilling of piles on the 151 Mercer lot, and whether the drilling that caused the damage occurred prior to plaintiff's grant of the License, plaintiff argues that most of the drilling was performed after the License was granted in April 2015. The court must view the evidence and facts in a light most favorable to the party opposing the motion, and must give that party the benefit of every inference which can be drawn from the evidence

(see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). Moskowitz avers that TBLCC drilled in October 2014 (see also complaint, ¶¶ 53-62). Furthermore, assuming, arguendo, the admissibility of the drawing that plaintiff states demonstrates pile drilling in May and June 2015, contained in an unsigned report that states that it was prepared by nonparty Saltus LLC for Langan (Moskowitz affidavit, exhibit F2 at C-157), this drawing also contains notations for drilling that occurred in October 2014, prior to the License's grant, that appear close to the middle of the 151 Mercer lot. Plaintiff has noted the relatively small size of the 151 Mercer lot, and, as plaintiff is the moving party, the court may not draw the inference in plaintiff's favor that later drilling, closer to the Building, caused the damages of which plaintiff complains (see plaintiff's reply memorandum of law at 4).

Plaintiff argues that, because TBLLC portrays plaintiff as obstinate, the court should conclude that the Building was not damaged before the License was granted, as an obstinate plaintiff would not have granted the License in 2015 when it had not been compensated for damages that occurred in 2014. Such a conclusion would also violate the rule against drawing inferences against the nonmoving party on summary judgment.

In addition, to prove causation, plaintiff relies on the unsworn Thornton reports and the [*2]Thyssenkrupp letter which are not admissible,[FN4] as "[u]nsworn reports, letters, transcripts and other documents do not constitute evidentiary proof in admissible form and may not be considered" (Rue v Stokes, 191 AD2d 245, 246-247 [1st Dept 1993]; Currie v Wilhouski, 93 AD3d 816, 817 [2d Dept 2012] [defendant's submission of unsworn letter to plaintiffs, from plaintiffs' own expert engineer, was not evidentiary material in admissible form and also failed to state expert's qualifications]; see also O'Connor v Restani Constr. Corp., 137 AD3d 672, 673 [1st Dept 2016] ["Inspector's Report of the New York City Department of Design and Construction fails to establish the accident location was in a reasonably safe condition on May 23, 2011, because the statements contained in that report are inadmissible hearsay. Even if the Report could be admitted as a business record, there is no foundation in the record to support its admissibility [internal citation omitted]"; Cannon v New York City Tr. Auth., 213 AD2d 303, 303 [1st Dept 1995] ["unsworn report of a civil engineer . . . does not constitute evidentiary proof in admissible form"]). These documents also do not indicate that any of the conclusions or opinions in them are made to a reasonable degree of engineering certainty.

Plaintiff correctly states that, for the purpose of Section 28-3304.9, where a causal relationship between work described in the statute and damage is demonstrated, what was actually damaged is not the issue. However, plaintiff does not point to the admissible evidence submitted in moving to demonstrate that the elevator was not damaged prior to the shut down or that the other damage to the Building was caused by TBLCC's excavation. Plaintiff states that TBLLC could have looked up the prior elevator reports for the Building. While this is true, defendants did not carry the moving burden on this motion (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Plaintiff asserts that causation has already been adjudicated through the sustaining of a DOB violation against TBLCC and submits evidence of a violation (Peluso reply affidavit, exhibit B), but this evidence is improperly raised for the first time in reply (All State Flooring Distribs., L.P. v MD Floors, LLC, 131 AD3d 834, 836 [1st Dept 2015]).

Plaintiff states that TBLLC's submissions demonstrate a lack of candor, but credibility issues are not adjudicated on summary judgment. In addition, Skanska Building, which argues that it is the construction manager, as opposed to the general contractor, submits the affidavit of its project manager, Stephan Freid, who avers that Skanska Building did not perform the pile drilling work that plaintiff claims led to injury to the Building. Fried also states that he observed construction work being performed in a building at 155 Mercer Street. Skanska Building submits a printout of a DOB violation, which references demolition at 155 Mercer Street building and indicates that the violation was not corrected until May 2015 (Johnson affirmation, exhibit D). The affidavit and documents also raise a fact issue as to the proximate cause of plaintiff's injury (see O'Hara v New School, 118 AD3d 480, 481 [1st Dept 2014]). That the documents plaintiff points to in its moving submissions conflict with Skanska Building's submissions merely demonstrate conflicting evidence.[FN5]

As issues of causation and, in relation to the License, the timing of drilling that may have caused the damage were not resolved here, it is unnecessary to consider the decision of the Environmental Control Board (ECB) submitted by TBLLC. This decision is not based on that determination, the transcript of which was reviewed in its entirety.[FN6]

In addition, concerning Thornton and Langan, the Appellate Division has determined that an architect was not subject to liability under Section 28-3308.4 where he established that he was not "the person who made the decision to excavate . . . [or] the contractor who carried out the physical excavation work" (American Sec. Ins. Co., 131 AD3d at 905). Langan and Thornton submit evidence that raises fact issues concerning whether their role in the project falls within the statute's reach, including, for Thornton, the affidavit of Robert K. Otani, P.E., a principal at Thornton. Otani avers that Thornton was retained to redesign the building at 151 Mercer, and was not hired to provide monitoring services or supervision over the Project or responsible for construction means, methods or safety precautions (Otani affidavit, ¶ 8).[FN7] Otani avers that the excavation proceeded under the direction and control of the contractors hired by TBLCC.[FN8]

Based on the License, plaintiff seeks summary judgment on its breach of contract claims against Skanska Building and TBLLC. Section 4 (g) of the License requires that plaintiff be provided with monitoring information. Plaintiff claims that TBLLC and Skanska Building breached by failing to provide data, for a certain period, and immediately when TPPN 10/88 vibration and movement limitations were exceeded (Moskowitz moving affidavit, exhibit D, at 13). Plaintiff asserts that surveys, conducted by Langan for TBLLC, revealed movement of the Building in excess of limitations, but that plaintiff was not informed until construction was halted. Summary judgment is not warranted because the License is not clear as to whether the duty to provide information is imposed upon Skanska Building or TBLLC, or both, and because [*3]plaintiff did not, in moving, establish that damages flowed from the alleged breach.[FN9]

Plaintiff argues that defendants violated section 4 (h) of the License by drilling a hole next to elevator shaft without consulting with plaintiff. Section 4 (h) is ambiguous as its language is subject to two interpretations. One interpretation is that the section applies to work concerning masonry voids, as the sentences preceding the sentence about notification addresses these voids. If the parties intended that the notification relate to masonry voids, plaintiff has not demonstrated that these voids were involved. Another interpretation is that the section constituted a general notice requirement for any work that might affect the elevator shaft. As the provision, in context, is susceptible to more than one interpretation, a determination is not appropriately made here.[FN10]

In article six of the Licence, TBLLC and Skanska Building agreed to reimburse plaintiff for all reasonable professional and legal fees. Moskowitz avers that these defendants have not done this, even though they were provided with written evidence of expenses and fees plaintiff has incurred. Plaintiff does not submit this evidence. In opposition, TBLCC asserts that it has paid some legal or other fees, and the License indicates that TBLLC paid over $47,000 in fees (Moskowitz moving affidavit, exhibit D at 4). Plaintiff did not demonstrate that additional compensation was presently demanded and due, or explain what fees plaintiff seeks that have not already been reimbursed, and the motion is denied.

Article nine of the License requires TBLLC to pay plaintiff $100 per day for each day that certain monitoring devices remain on the Building after April 30, 2016, plus any extensions of time granted by plaintiff.[FN11] In his October 13, 2016 affidavit, Moskowitz avers that the monitoring devices remain in place "until this day" (Moskowitz moving affidavit, ¶ 45). The $100 per day obligation is applicable "unless such delay is caused solely by Moskowitz's unreasonable action or unreasonable] delay, or by a Force Majeure Event" (id., exhibit D at 22). In opposition, TBLCC argues that the delay in construction was caused by plaintiff's unreasonable conduct, citing to the entire record of a separate proceeding in this court. In that proceeding, TBLLC sought a judicial license to install and maintain monitoring devices and take other protective measures.

The burden of a party opposing summary judgment is "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a [*4]trial of the action" (Stonehill Capital Mgt., LLC v Bank of the W., 28 NY3d 439, 448 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). A party's statement that it is incorporating by reference the entirety of "the extensive papers submitted" in a separate proceeding (TBLLC opposition memorandum of law at 15), without citation to a particular submission therein, does not meet this standard. This is not the production of evidence, and would require the court to determine which of the submissions from the proceeding should be introduced into the present case as evidence to establish a fact issue. In addition, in the proceeding upon which TBLCC relies, the First Department reversed the prior grant of the judicial license and dismissed TBLLC's petition (Matter of Tory Burch LLC v Moskowitz, 146 AD3d 528, 528 [1st Dept 2017]). TBLLC's conclusion, that DOB's issuance of a violation demonstrates unreasonable action or delay caused solely by plaintiff, is unsupported.

However, plaintiff has not demonstrated, and Moskowitz did not aver, that plaintiff was not paid the fee, or any portion of it, and article nine of the License states that $20,000 was placed into escrow for payments of amounts due under that article. Plaintiff does not address this, or whether or not it has already received payments from its escrow agent, its attorney in this case, for the fee, for the period from May 1, 2016 to October 13, 2016, the date in Moskowitz' affidavit (Moskowitz moving affidavit, exhibit D, at 19 [termination], 22-23). Under these circumstances, the motion must be denied. As the motion has been denied, it is it is unnecessary to reach the argument that the motion is premature.

Therefore, it is

ORDERED that the plaintiffs' motion for summary judgment is denied.

Dated: July 3, 2017

ENTER:

______________________________

J.S.C. Footnotes

Footnote 1:Moskowitz frequently uses the word "defendants" to describe conduct, but fails to specify which of the four defendants was actually engaged in the specific conduct.

Footnote 2:Plaintiff states that the letter demonstrates that Thyssenkrupp determined that the elevator had damage to its in-ground piston, and contained mud and drilling slurry from 151 Mercer.

Footnote 3:In Harris v Bose (2014 NY Slip Op 31620(U) [Sup Ct, NY County, Kern, J. 2014], the court noted that the changes in the statute did not alter its "original purpose of shifting the risk of injury from the injured landowner to the excavator of adjoining land." The First Department has stated that plaintiffs who brought a claim under "former Administrative Code § 27-1013 (b) (1)" should have done so "under the equivalent provision now contained in Administrative Code § 3309.4" (87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 541 [1st Dept 2014]).

Footnote 4:Assuming, arguendo, that the reports are admissible against Thornton as an admission, Thornton raises a fact issue as to its role in the Project.

Footnote 5:Plaintiff submits documents which include a letter on Skanska Building letterhead, dated June 24, 2015, stating that Skanska Building was implementing a site water filtration system, in connection with mini-piles for the foundation of 153 Mercer. The License, signed by Skanska Building, states that Skanska Building is the construction manager and permit holder, employed by TBLLC, to construct the building, at 151 Mercer with subcontractors. TBLLC represented that it was in the process of performing construction work on 151 Mercer and a proposed redesign of the north side of the foundation wall as set forth in certain Thornton plans and that it has contracted with Skanska Building to perform the work at 151 Mercer "including . . . installation and construction work by subcontractors to the building to be . . . constructed at 151 [Mercer]" (Moskowitz moving affidavit, exhibit D at 2).

Footnote 6:What TBLLC knew about the hearing is not ascertainable on this record.

Footnote 7:Moskowitz avers that the water infiltration from the drilling of piles contributed to the movement of the Building, but does not cite to the record evidence that demonstrates this point.

Footnote 8:Plaintiff's moving presentation discusses conflicting evidence about Langan (Moskowitz moving affidavit, at 11, ¶ 27) and describes Langan's role as advising, consulting, conducting a survey, making recommendations, designing, monitoring, seeking a waiver, reviewing, inspecting and stopping work (id. at 11-15). Plaintiff provides nothing to demonstrate what the role of special pile inspector entails.

Footnote 9:In its reply affirmation, plaintiff states that it demonstrates "below" that damages do flow from the breaches, but does not argue that it made this demonstration in moving (Peluso reply affirmation to TBLCC, ¶ 12).

Footnote 10:In reply, plaintiff argues that because the sentence beginning with "If in the course of," of Section 4 (h), requires TB and Skanska to notify plaintiff about voids in walls adjacent to the elevator, the last sentence of Section 4 (h) would be rendered unnecessary. However, it is not clear that the sentence beginning with "If in the course of" refers to voids in the wall near the elevator, as that sentence also discusses an agreed upon plan, which appears to have been for any voids that were not close to the elevator, discussed previously in the document.

Footnote 11:Where the complaint alleges the breach of article nine of the License is unclear.