237 W. 123rd St., LLC v A. Aleem Constr., Inc.
Annotate this CaseDecided on July 21, 2021
Supreme Court, New York County
237 West 123rd Street, LLC, Plaintiff,
against
A. Aleem Construction, Inc., ADC/ENNIS FRANCIS OWNER, L.P., ADC/ENNIS FRANCIS II HOUSING DEVELOPMENT FUND CO INC., DANOIS ARCHITECT, P.C., C.J.L. CONSTRUCTION, INC.(3RD PARTY DEFT.), RIZWAN ABDUS SALAM P.E. (3RD PARTY DEFT.), CONSULTING ENGINEER P.C. (3RD PARTY DEFT.), Defendants.
155856/2012
Turturro Law, P.C., Brooklyn, NY (Natraj Bhushan of counsel), for plaintiff 237 West 123rd Street, LLC.
Law Offices of Donald S. Domitrz, New York, NY (Donald Domitrz of counsel), for plaintiff Public Service Mutual Insurance Company a/s/o Stacey Rosenblatt-Golia and 237 West 123rd Street, LLC.
Law Office of James J. Toomey, New York, NY (Robert Fumo of counsel), for defendants ADC/Ennis Francis Owner, L.P., ADC/Ennis Francis II Housing Development Fund Co Inc.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY (Daniel McFaul of counsel), for defendant Danois Architect, P.C.
Brill & Associates, P.C., New York, NY (Haydn Brill of counsel), for third-party defendant CJL Construction, Inc.
Gerald Lebovits, J.
This decision addresses several motions (consolidated for disposition) that have been filed in two consolidated tort actions arising from a Manhattan construction project: 237 West 123rd Street, LLC v A. Aleem Construction Inc., Index No. 155856/2012 (first action), and Public Service Mutual v A. Aleem Construction et al., Index No. 155467/2013 (second action).[FN1]
In motion sequence 004 of the first action, ADC/Ennis Francis II Housing Development [*2]Fund Co., Inc. and ADC/Ennis Francis Owner, L.P. (collectively, ADC/Ennis defendants) move under CPLR 3212 for summary judgment in their favor, granting common-law indemnification (second cause of action), contractual indemnification (only alleged in the second action), and contribution (first cause of action) against third-party defendant CJL Construction.
In motion sequence 002 of the second action, the ADC/Ennis defendants and Aleem Construction move as third-party plaintiffs under CPLR 3212 for summary judgment in their favor, granting contribution (first cause of action), common-law indemnification (third cause of action), and contractual indemnification, also against CJL Construction.
In motion sequence 004 of the first action, the ADC/Ennis defendants and Aleem Construction also seek an order under CPLR 305 (c) and CPLR 3025 (b) granting leave to serve an amended third-party complaint including Aleem Construction as an additional third-party plaintiff against third-party defendants CJL Construction and Rizwan Abdus Salam P.E., Consulting Engineer P.C. (Salam).
In motion sequence 005 of the first action and motion sequence 001 of the second action, defendant Danois Architect, P.C. (Danois) moves for summary judgment under CPLR 3212 dismissing with prejudice all claims and crossclaims against it.
BACKGROUND
Plaintiff 237 West owns the property and building at 237 West 123rd Street, New York County. Defendants ADC/Ennis Francis II Housing Development Fund Co and ADC/Ennis Francis Owner hold the legal and equitable titles, respectively, to the adjacent property, 225 West 123rd Street.
In 2011, ADC/Ennis Francis Owner contracted with Aleem Construction to construct a building at 225 West 123rd Street. (NYSCEF No. 136 at 1.) Aleem Construction subcontracted the excavation and underpinning work to third-party defendant CJL Construction. (NYSCEF No. 137 at 1.) To fulfill its contractual obligations to Aleem Construction, CJL Construction obtained insurance coverage for property damage from the Travelers Indemnity Company of America (Travelers). (See NYSCEF No. 137 at ¶ 7.2; NYSCEF No. 189.) Travelers defends CJL Construction in this action. (NYSCEF No. 191 at 1, 2.) As an additional insured under CJL Construction's policy, Aleem Construction is also defended by Travelers in this action. (See NYSCEF No. 189 at 119; NYSCEF No. 190 at 1.)
Aleem Construction also contracted with Salam for engineering services relating to excavation and underpinning for the adjacent property. Non-party Abyssinian Development Corp. contracted with defendant Danois to provide architectural services for the building at 225 West 123rd Street.
In the first action, 237 West alleges that (1) defendants' negligent construction practices resulted in damage to 237 West's building (first cause of action); (2) defendants negligently dumped soil and debris on 237 West's property (second cause of action); and (3) defendants' negligence impaired 237 West's ability to provide a habitable living environment for the tenants in its building (third cause of action). In its fourth cause of action, 237 West also alleges that defendants are liable for damages resulting from various New York City Building Code violations. Specifically, 237 West claims that defendants violated Administrative Code § 28-3309.4 (concerning the protection of adjoining property during soil or foundation work).
In the second action, Public Service Mutual alleges as 237 West's subrogee that (1) [*3]defendants' negligent construction and excavation practices caused damage to 237 West's building (first cause of action) and (2) defendants are liable for damages resulting from various violations of the New York City Building Code, including Administrative Code § 28-3309.4.
The parties have filed various reports concerning the cause of alleged damages to 237 West's building. Ted Yen, P.E., an engineer retained by Stacey Rosenblatt-Golia (the sole member of 237 West), opines that damage to 237 West's building was caused by improper altering or cutting of steel "rakers" (temporary structural supports). (NYSCEF No. 184.) In his affidavit, David Peraza, P.E. (retained by CJL Construction), appears to agree. (NYSCEF No. 192.)
In contrast, Atlantic Professional Services, an engineering consulting firm retained by Public Service Mutual, concludes that defendants did not adhere to planned shoring, bracing, and underpinning procedures, resulting in damages to 237 West's building. (NYSCEF No. 99 at 27). Joelle Nelson, P.E., retained by the ADC/Ennis defendants and Aleem Construction, also cites insufficient underpinning as the cause of damages. (NYSCEF No.147 at ¶ 7.) However, Salam's report asserts that all but one portion of the underpinning work was executed according to plan and that the underpinning was done adequately. (NYSCEF No. 118 at 1.)
As third-party plaintiffs in the first action, the ADC/Ennis defendants have impleaded CJL Construction and Salam for contribution (first and third causes of action, respectively) and common-law indemnification (second and fourth causes of action, respectively). As third-party plaintiffs in the second action, ADC/Ennis defendants and Aleem Construction have impleaded subcontractor CJL Construction and Salam for contribution (first and second causes of action, respectively), common-law indemnification (third and fourth causes of action, respectively), and contractual indemnification (fifth and sixth causes of action, respectively).
In both the first and second actions, the ADC/Ennis defendants cross-claim against Danois for contribution and indemnification. In the first action, Aleem Construction also cross-claims against Danois for contribution, indemnification, and breach of contract for failing to list Aleem Construction as an insured party in insurance policies. In the second action, Aleem Construction cross-claims against Danois for contribution and indemnity.
DISCUSSION
I. The ADC/Ennis Defendants' Motion for Summary Judgment Against Third-Party Defendant CJL Construction (First Action, Motion Sequence 004)
Summary judgment allows a party to show that no issue of material fact remains to be tried, permitting judgment as a matter of law and "avoiding needless litigation cost and delay." (Brill v City of New York, 2 NY3d 648, 651 [2004].) When a non-moving party appears to be entitled to summary judgment, "the court may grant such judgment without the necessity of a cross-motion." (CPLR 3212 [b].)
A. Contractual Indemnification
Consolidation entails the "total merger of the separate actions into one action." (Mars Assoc., Inc. v New York City Educ. Const. Fund, 126 AD2d 178, 185 [1st Dept 1987].) Therefore, this court will consider the ADC/Ennis defendants' motion for summary judgment on the issue of contractual indemnity, even though they pleaded a cause of action for contractual indemnity in the second action only.
The ADC/Ennis defendants argue that they are entitled to contractual indemnification from and judgment against CJL Construction. This claim is based on Article 10.1 of the 2011 contract between Aleem Construction and CJL Construction, in which Aleem Construction subcontracted the excavation and underpinning work to CJL Construction. Article 10.1 reads:
"[T]he Subcontractor agrees to defend, indemnify and hold harmless the Contractor, Owner and Architect . . . from and against all claims, actions, suits, liabilities, losses, damages, costs and expenses . . . resulting from injury or alleged injury to persons . . . that may arise or be alleged to have arisen, wholly or in part, out of the performance of this Agreement by the Subcontractor or its agents. . . ." (NYSCEF No. 137 at 16 [emphasis added].)In New York, unambiguous contractual language is given its plain meaning. (Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002].) Whether contractual language is ambiguous is a question of law. (W.W.W. Assoc., Inc. v Giancontieri, 77 NY2d 157, 162 [1990].)
The ADC/Ennis defendants appear to argue that CJL Construction's contractual obligations extend to claims of property damage. This court disagrees. First, the contract's language— "injury or alleged injury to persons"—unambiguously does not cover claims for property damage. Second, "[a] court will not find a duty to indemnify unless a contract manifests 'a clear and unmistakable intent to indemnify' for particular liabilities." (Millennium Holdings LLC v Glidden Co., 146 AD3d 539, 545 [1st Dept 2017] [internal citation omitted].)
Separately, this court finds unavailing any suggestion that the contract between ADC/Ennis Owner and Aleem Construction obligates subcontractor CJL Construction to indemnify the ADC/Ennis defendants.
There being no contractual basis for the ADC/Ennis defendants' argument, their motion for summary judgment is denied, and summary judgment is granted in favor of CJL Construction as a non-moving party as to ADC/Ennis' defendants' fifth cause of action (second action).
B. Common-Law Indemnification
To prove its entitlement to common-law indemnification, "the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident for which the indemnitee was held liable to the injured party." (Correia v Professional Data Mgt., Inc., 259 AD2d 60, 65 [1st Dept 1999].)
It is not enough for the ADC/Ennis defendants to show that they were not negligent. They must also show that no issues of material fact remain about the role of CJL Construction's negligence in causing the damage to 237 West's building.
Factual disputes remain about what act(s) caused damage to 237 West's building.
The ADC/Ennis defendants and Aleem Construction's engineer, Nelson, alleges that insufficient underpinning caused damage to 237 West's building. In contrast, plaintiff's engineer, Yen, asserts that altering or cutting the rakers caused the damage. CJL Construction's engineer, Peraza, agrees in his affidavit, and the ADC/Ennis defendants do not allege that CJL Construction cut the rakers.
The ADC/Ennis defendants and Aleem Construction argue that Peraza's report is inadmissible because it is speculative, conclusory, and lacks "requisite first-hand knowledge." (See NYSCEF No. 206 at 12.) However, Peraza avers that his report is based on his review of [*4]documents, testimony, and personal performance of on-site inspections (excluding inspection of the underpinning, which was impossible due to the development of the building at 225 West 123rd Street). (See NYSCEF No. 192 at ¶ 3.)
The parties also dispute whether CJL Construction negligently performed the underpinning. As evidence of CJL Construction's negligence, the ADC/Ennis defendants and Aleem Construction cite the Atlantic Professional Services report and Nelson's report that was based in part on the Atlantic report (see NYSCEF No. 147), in addition to other evidence including the Yen report.
In response, CJL Construction argues that the Atlantic report is inadmissible because it is unsigned and unsworn. Indeed, an unsworn engineer's report generally does not constitute competent evidence. (See Arce v 1704 Seddon Realty Corp., 89 AD3d 602, 603 [1st Dept 2011].) But Nelson's professional opinion is based on the determinations of several engineers, not just the Atlantic report. (See NYSCEF No. 147 at ¶¶ 1.4, 7.1.2.) Moreover, Yen appears to have raised the same issue in his initial report before contacting Atlantic Professional Services' engineer. (See NYSCEF No. 184 at 2; NYSCEF No. 185 at 1.)
Regardless, considered on its own, the dispute about what act(s) caused damage to 237 West's building raises sufficient issues of fact to be tried. Accordingly, summary judgment is denied on the ADC/Ennis defendants' second cause of action for common-law indemnification from CJL Construction.
C. Contribution
Contribution distributes the loss among tortfeasors by requiring joint tortfeasors "to pay a proportionate share of the loss to one who has discharged their joint liability." (Rosado v Proctor & Schwartz, Inc., 66 NY2d 21, 23 [1985].) As discussed above, issues of material fact remain about what and whose actions caused damage to 237 West's building. Therefore, judgment is premature as to whether the ADC/Ennis defendants and CJL Construction are joint tortfeasors. Summary judgment is denied.
II. Leave to Amend the Third-Party Complaint to Add Aleem Construction as a Third-Party Plaintiff
A party may amend a pleading at any time with the court's leave. (CPLR 3025 [b].) Leave to amend should be given freely absent prejudice to the opposing party (CPLR 3023 [b]; Inwood Tower Inc. v Fireman's Fund Ins. Co, 290 AD2d 252, 252-53 [1st Dept. 2002]). The movant need not establish the merits of the amendment. (Cruz v Brown, 129 AD3d 455, 456 [1st Dept 2015].) Rather, the movant is only required to show that the proposed amendment is not "palpably insufficient or clearly devoid of merit." (Id. [internal citation omitted].)
Although the party moving to amend a pleading must establish a reasonable excuse for an extended delay in doing so (Oil Heat Inst. V. RMTS Assocs., LLC, 4 AD3d 290, 293 [1st Dept 2004]), lateness in seeking leave does not bar a court from granting leave to amend absent prejudice (Edenwald Contracting Co. v New York, 60 NY2d 957, 959 [1983]). Regardless of the extended delay in this case, CJL Construction does not allege that it will be prejudiced.
CJL Construction further contends that an amendment adding Aleem Construction as a third-party plaintiff will violate the anti-subrogation rule because the same insurer—Travelers—defends and insures both Aleem Construction and CJL Construction. Under the anti-subrogation rule, an insurer "has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered." (Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 468 [1986].) The anti-subrogation rule also bars an insured's [*5]common-law indemnification claim where the claim would effectively subrogate the insurer against another of its insureds. (See id. at 470.)
Because Travelers defends and insures both CJL Construction and Aleem Construction under CJL's Travelers insurance policy, the court agrees that the anti-subrogation rule applies. But the rule does not apply to any damages awarded against Aleem Construction that exceed the coverage of the Travelers policy. (See, e.g., New York City Dept. of Transp. v Petric & Assoc., Inc., 132 AD3d 614, 615 [1st Dept 2015] [applying the anti-subrogation rule only to the extent of policy coverage].) Here, the Travelers policy covers up to $1,000,000, $350,000 less than the damages sought by 237 West. (See NYSCEF No. 99.) Thus, Aleem Construction's claim against CJL Construction for common-law indemnification (the third cause of action in the proposed amended complaint) is not "clearly devoid of merit." (See Cruz, 129 AD3d at 456.)
Nonetheless, for the reasons discussed in Section I (A) of this opinion, this court finds Aleem Construction's proposed fifth cause of action for contractual indemnification (NYSCEF No. 148 at ¶ 28) devoid of merit.
Therefore, leave to add Aleem Construction as a third-party plaintiff is granted, but Aleem Construction is denied leave to plead contractual indemnity.
III. Danois's Motion for Summary Judgment Dismissing All Claims and Crossclaims Against It (First Action Motion Sequence 005; Second Action Motion Sequence 001)
A. Negligence
i. Negligent Damage to 237 West's Building (First Action, 237 West's First Cause of Action; Second Action, Public Service Mutual's First Cause of Action)
An architect is not liable to the owner of adjacent property for damage to that property caused by excavation when a contract between the property owner and the architect does not "specifically impose any duties with respect to the excavation phase of a project" and expressly states that the architect does not control or have responsibility for the means and methods of construction. (87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 541 [1st Dept 2014].)
The contract between ADC and Danois stipulates that Danois will not undertake any construction work or have control over or responsibility for the means and methods of construction. (See NYSCEF No. 153 at § 2.5.6.) Danois was not obligated to make "exhaustive or continuous on-site inspections to check the quality or quantity of the Work." (Id. at § 2.5.5; NYSCEF No. 154 at 8.)
237 West does not identify facts supporting its argument that Danois owed it a duty. First, 237 West suggests that Danois owed it a duty because it designed "foundational-related aspects" of the building at 225 West 123rd Street, apparently referring to the underpinning. (NYSCEF No. 197 at 2.) But it was engineer Salam—not Danois—who designed the underpinning. (See NYSCEF No. 159 at 32:25-33:4.) Second, 237 West argues that Danois was responsible for failing to monitor construction, something Danois was allegedly required to do after filing a technical report (TR-1: Technical Report Statement of Responsibility). This mistakes the function of the initial TR-1. In his affidavit, David Danois attests that Danois filed the first TR-1 (NYSCEF No. 202) in 2008 to have its plans approved by the New York City Department of Buildings. (NYSCEF No. 154 at 60:20-25.) And Danois filed another TR-1 in 2012 withdrawing responsibility for the underpinning work. (See NYSCEF No. 203 at ¶¶ 3-4.) Also in 2012, Salam filed initial and final TR-1s accepting responsibility for the relevant work and affirming that he monitored the underpinning. (See NYSCEF No. 163; NYSCEF No. 164.)
Danois's liability for the underpinning or the excavation cannot be demonstrated. The motion for summary judgment is granted in Danois's favor. 237 West's first cause of action and Public Service Mutual's first cause of action are dismissed.
ii. Negligent Dumping of Debris on 237 West's Property (First Action, 237 West's Second Cause of Action)
The parties do not dispute that Danois did not perform construction work. (See NYSCEF No. 153 at § 2.5.5.) Danois did not have control over, charge of, or responsibility for construction means, methods, and techniques, nor did it have "control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees." (Id. at § 2.5.6.) Accordingly, Danois did not have a duty to prevent the dumping of debris or soil on 237 West's property. Summary judgment is granted dismissing 237 West's second cause of action against Danois.
iii. Negligent Impairment of Tenants' Living Environment (First Action, 237 West's Third Cause of Action)
237 West alleges that Danois's negligence impaired its ability to provide a habitable living environment for its tenants. To the extent that this is a claim for damages arising from negligence, the court cannot find Danois liable because 237 West has failed to establish that Danois owed it any duty, as discussed previously.
To the extent that this is a claim for damages arising from private nuisance, 237 West fails to allege—and the record fails to show—that Danois interfered intentionally with 237 West's tenants' right to the quiet enjoyment of their apartments. (See Copart Indus., Inc. v. Consol. Edison Co. of New York, Inc., 41 NY2d 564, 570-71 [1977] [noting intentionality has an element of a claim for private nuisance].)
Summary judgment is granted dismissing 237 West's third cause of action against Danois.
Liability for Violation of the New York City Building Code/Administrative Code § 28-3309.4 (First Action, 237 West's Fourth Cause of Action; Second Action, Public Service Mutual's Second Cause of Action)
Under the New York City Building Code, "the person who causes [soil and foundation work] to be made shall . . . preserve and protect from damage any adjoining structures" and is strictly liable for any damages such work causes to an adjacent building. (Administrative Code § 28-3309.4.)
As an architect who neither owns the property excavated nor performed the excavation, Danois is not liable under the Building Code for damages to 237's West property despite designs requiring excavation. (See 87 Chambers, 122 AD3d at 541.) In other words, Danois did not cause soil and foundation work to be made within the meaning of § 28-3309.4.
Accordingly, summary judgment is granted dismissing plaintiff 237 West's fourth cause of action against Danois in the first action and Public Service Mutual's second cause of action against Danois in the second action.
B. The ADC/Ennis Defendants' and Aleem Construction's Crossclaims Against Danois
When, as here, a motion for summary judgment is unopposed, a court will grant the motion if the movant has demonstrated that no genuine issues of material fact remain. (See Cugini v Sys. Lbr. Co., Inc., 111 AD2d 114, 114 [1st Dept 1985].)
As explained in Part III of this opinion, summary judgment is granted dismissing all of 237 West and Public Service's claims against Danois. But the ADC/Ennis defendants and Aleem [*6]Construction's crossclaims against Danois for contribution and indemnity presume that those claims exist. Therefore, summary judgment is granted dismissing all crossclaims against Danois for contribution and indemnification (first action, the ADC/Ennis defendants' first and second crossclaims, Aleem's first, second and third crossclaims; second action, the ADC/Ennis defendants' first and second crossclaims, Aleem Construction's first and second crossclaims).
Further, this court finds no evidence that Danois agreed to list Aleem Construction as an additional insured. Therefore, summary judgment is granted dismissing Aleem Construction's crossclaim against Danois for breach of contract for failure to list Aleem Construction as an additional insured (first action, Aleem Construction's fourth crossclaim).
Summary judgment is granted dismissing all the ADC/Ennis defendants' and Aleem Construction's crossclaims against Danois.
Accordingly, it is hereby
ORDERED that the branch of the ADC/Ennis defendants' motions seeking summary judgment granting indemnification and contribution (motion sequence 004, first action; motion sequence 002, second action) is denied; and it is further
ORDERED that summary judgment is granted in favor of CJL Construction as the nonmoving party dismissing the ADC/Ennis' defendants' fifth cause of action (second action), and that cause of action is dismissed; and it is further
ORDERED that the branch of the ADC/Ennis defendants' motion seeking leave to amend (motion sequence 004, first action) is granted in part and denied in part; and it is further
ORDERED that Danois's motions for summary judgment (motion sequence 005, first action; motion sequence 001, second action) are granted.
FootnotesFootnote 1:All NYSCEF references are to filings for the first action (Index No. 155856/2012).
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