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COURT OF CLAIMS OF NEW YORK Claim No. 46663 1968.NY.42586 <>; 293 N.Y.S.2d 201; 57 Misc. 2d 497 July 11, 1968 ROSARIO GUERCIO ET AL., CLAIMANTS,v.STATE OF NEW YORK, DEFENDANT Max Thaler for claimants. Louis J. Lefkowitz, Attorney-General (Raymond La Scala and Geoffrey A. Smith of counsel), for defendant. Caroline K. Simon, J. Author: Simon

Caroline K. Simon, J.

Author: Simon

 In 1953 claimant erected a concrete one-story building at 5504-5510 Third Avenue in Brooklyn. He and his wife are co-owners. New York City authorities issued a certificate of occupancy on November 25 of that year. Since its erection the building has been continuously occupied by one tenant as a hiring hall and meeting room. No heavy machinery is used in the building, nor is any manufacturing performed there.

Gowanus Highway, an elevated viaduct, runs along Third Avenue past Mr. Guercio's building. It is a well-traveled thoroughfare leading from downtown Brooklyn to the Belt Parkway and Long Island. New York State, as part of its program of highway improvement, reconstructed and widened this viaduct for a considerable distance, including the portion adjacent to Mr. Guercio's property. On May 27, 1964 claimant noticed cracks in the wall of his building. On June 29, 1964 a more thorough inspection was made by an engineer, at claimant's request. Mr. Guercio thereafter filed a claim against the State of New York alleging negligence in the breaking up of the concrete pavement of the viaduct and the driving of piles preparatory to widening the roadway as being the cause of damage to his building.

Notice of intention to file a claim was received and filed by the Clerk of the Court of Claims on July 11, 1964 and by the Department of Law on July 13, 1964. The claim itself was filed in both offices on June 20, 1966. It seeks $4,000, a sum which, as the claim states, is in excess of the damage amount adjustable by agreement with the Superintendent of Public Works, pursuant to subdivision 17 of section 30 of the Highway Law. The claim has neither been assigned, nor tried, nor brought before any other court or tribunal for determination. A similar suit has been instituted in the New York City Civil Court against the contractor responsible for the reconstruction of the same segment of that highway.

Mr. Guercio testified that he first noticed construction work on the highway in his neighborhood in 1961, and that the work continued for three years. He described the work as heavy machinery pounding and breaking the concrete roadway near his building, pile driving for foundations, with resulting vibration and noise. Mr. Guercio stated that he visited his building frequently and could feel the force of the hammers employed. He described it as terrific and likened it to an earthquake.

Claimant described the building as having been constructed entirely of solid, unreinforced concrete, with footings of that material extending from five feet below ground to five feet above ground. He said the walls above the 20-inch wide footings also were made of solid concrete in blocks one foot thick. The inside was unplastered and the walls had been painted dark blue and green by his tenant. The building measured 65 feet across its front and rear, with a depth of 100 feet.

On May 27, 1964 Mr. Guercio visited the building, in response to a request by his tenant to have a window repaired. As he approached the window, located on the southerly wall, he noticed a crack about one quarter of an inch wide in that wall. He then noticed a similar crack on the westerly inside wall. He went outside the building and inspected the exteriors of both walls, noting several cracks, some of which extended upward from the footings. Photographs of these cracks were taken in early 1968 and were introduced into evidence as claimants' Exhibits 6 through 18, inclusive.

Mr. Guercio added that he had seen no cracks on any of his previous visits to the building, although he never before examined it. An engineer, retained in June, 1964 to survey the damage, submitted an estimate of $2,065 to repair that damage. The expert testified that the building could never be completely restored to its prior condition, even if the repairs were made. The repairs have not yet been made. On cross-examination Mr. Guercio admitted that the pile-driving machinery he observed had been operating several blocks away from his building on Third Avenue.

Portions of the testimony adduced in an examination before trial of the State's assistant to the area supervisor of construction were read into the trial record. They disclosed that the rebuilding of the Gowanus Expressway was divided into four projects. The contract for work in the vicinity of Mr. Guercio's building was known as FIGE 61-2 and included the territory from 54th Street to 65th Street. The engineer stated that possibly 15 columns were installed between 55th and 56th Streets after November 1, 1963, that cranes were located on the elevated highway to deposit concrete on it and to erect the steel columns. He said that a small bulldozer was used for excavations at street level, but no pounding machinery had been employed. He stated further that excavations to place four columns there were commenced on the westerly side of Third Avenue between 54th and 55th Streets in late August, 1963. He said that the footings were set 7 to 10 feet into the ground and that excavations ceased when the footings reached a stable depth level as determined by borings which had been previously taken in the area.

The engineer's diary included notations of pile driving in the area between 61st and 64th Streets during an extended period of time from October, 1961 to February, 1963, and later entries of piles having been redriven on August 30 and September 3, 1963. He explained the use of a pile-driving rig in his examination before trial and reported that a jack hammer or chipping machine had been used for two to four days beginning August 2, 1963 to break up concrete on the existing elevated highway on the westerly side of the area between 51st and 55th Streets. He described the composition of the Third Avenue roadway at street level as asphalt with a six to eight inch concrete base beneath it.

A licensed engineer specializing in concrete and structural work testified for claimant. He said he had inspected Mr. Guercio's building, noting six cracks on the outside of the west wall, starting at grade and running upward, some to the roof. He noticed four similar cracks on the south wall. He stated that his inspection of the interior of the building showed cracks which related to the outside cracks.

He further testified that the interior cracks showed signs of having occurred after the building had been painted, since there was no paint in the cracks. As to the outside wall cracks, he said that they seemed newly made, since the exposed concrete appeared fresh, without dirt or accumulation of debris from weather. He stated that the transmission of ground shock waves to the foundation was the cause of these fissures. As to the exact piece of equipment that caused the shock waves, he could not testify, but he felt that the settlement of the foundation was caused by construction in the neighborhood. He said that concrete breakers and pile drivers could generate sufficient force to cause vibrations and shock waves producing the cracks he inspected.

On cross-examination, the engineer stated that a concrete building erected without steel reinforcement rods is subject to expansion and contraction with temperature changes, and that cracks can appear, especially when expansion joints are not incorporated in the foundation. He added, however, that cracks due to temperature changes would normally appear within three years after the building has been erected, and that they would not take 10 years to develop. He gave as his expert opinion that the cracks he inspected were caused by external vibrations to the foundation of the building.

The testimony of a neighbor of Mr. Guercio as to the appearance of machinery and equipment in the neighborhood added little to the proof, since he was unable to pinpoint ...

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