450 N.Y.S.2d 551, 555
(N.Y. App. Div. 1982) (noting, in context of New York Labor Law's
provision for contractor liability, "[l]egislative purpose of
placing absolute liability upon the party or parties responsible
for coordinating and supervising the entire construction
project."); Carollo v. Tishman Constr. & Research Co.,
440 N.Y.S.2d 437, (N.Y. Sup. Ct. 1981) (finding passively negligent
construction manager liable for active negligence of
subcontractor because contract gave construction manager the
penumbral obligation to coordinate the subcontractors and ensure
the safety of the work site).
Turner next cites Cubito v. Kreisberg, 419 N.Y.S.2d 578 (N Y
App. Div. 1979), aff'd, 51 N.Y.2d 900, 434 N.Y.S.2d 991,
415 N.E.2d 979 (1980), in support of the argument that the Court
erroneously applied an architectural malpractice standard to
Turner's claims against SLCE in considering SLCE's motion for a
directed verdict. Specifically, Turner contends that such simple
negligence, rather than the malpractice standard, applies where,
as here, the third-party plaintiff is not the architect's client.
Yet Cubito addressed the question of when a cause of action
accrues for the assertion of a bodily injury claim against a
design professional. Id. In an action pertaining to professional
misconduct, in contrast, the plaintiff must introduce evidence,
most typically through expert testimony, regarding the standard
of care and the professional's variance from that standard. See
Hydro Investors, Inc. v. Trafalgar Power, Inc., 227 F.2d 8 (2d
Cir. 2000) (architectural malpractice); D.D. Hamilton Textiles,
Inc. v. Estate of Theodore Mate, 269 A.D.2d 214, 703 N.Y.S.2d 451
(N.Y. App. Div. 2000) (professional negligence). Turner failed to
introduce any evidence of the standard of care applicable to
architects in designing roofs, and therefore has failed to
introduce any substantial ground for a difference of opinion on a
controlling question of law.
In sum, Turner has failed to meet the standard required by
§ 1292(b) to certify an interlocutory appeal of the order
3. Severance of Amtex
Turner filed a motion to add Amtex as a necessary party to this
action nearly two years after this litigation began. In a prior
opinion, this Court severed Amtex from the trial due to the
lateness of joinder and the potential prejudice to plaintiffs if
the entire case were to be delayed, and to Amtex if it were
forced to defend at trial less than three months after being
joined. Wausau Business Ins. Co. v. Turner Const. Co., No. 99 CIV
682 RWS, 2001 WL 460928 (S.D.N.Y. May 2, 2001) (Wausau II).
Turner contends that as a result of severance, it was the only
defendant left to defend on the issue of the operation of the
exhaust fans, and that Amtex employee, Jesus Marin, was able to
change his testimony at trial without risking exposure to Amtex.
(Christofedes Letter of June 21, 2001 at 7.) In short, Turner and
Aris argue that severing Amtex denied them due process of law.
Neither Turner nor Aris presents any issues of controlling law
that would create a substantial ground for a difference of
opinion that would justify certifying this question for an
4. Failure to Dismiss the Jury Pool
During voir dire, a prospective juror stated in open court that
he had previously worked with Turner and had come to mistrust
them. The Court dismissed the prospective juror for cause but
denied Turner's application to dismiss the entire jury pool.
Whether to grant a motion to quash a jury venire for prejudicial
statements rests within the discretion of the trial court, and
will not be reversed unless the Second Circuit finds that the
district court abused its discretion. See United States v. Smith,
306 F.2d 596, 602, 603 (2d Cir. 1962) (reversing trial court's
decision to quash petit jury panel as "clearly erroneous,"
because "the mere awareness that some of their fellows had such
prejudice as to require that they be excused cannot realistically
be said to disqualify the jurors finally selected"), cert.
denied, 372 U.S. 959, 83 S.Ct. 1012, 10 L. Ed.2d 11 (1963).
Turner has failed to proffer any controlling authority that
would raise a substantial ground for a difference of opinion on
this question. No order authorizing interlocutory appeal of the
jury pool question will be issued.
5. Argument on Percentage of Trident's Liability Covered by
Finally, Turner suggests that in closing, both counsel for
Wausau and counsel for Trident argued "that Trident was only 2%
to 3% liable and that therefore Trident had settled with
plaintiffs commensurate with that percentage." (Christofedes
Letter of June 21, 2002. at 8.) Turner contends that this
argument was an improper attempt to "manipulate the jury" as to
Trident's share of liability, a prejudicial act of which Turner
bore the brunt. (Id.) Trident and Wausau contest that either
counsel ever equated the settlement amount with Trident's
proportional share of liability.