The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Crown Castle USA Inc., Crown Castle GT Company LLC, Crown Castle Atlantic LLC, Crown Atlantic Company LLC and Crown Communication Inc., (collectively "Crown") brings this action against Fred A. Nudd Corporation ("Nudd"), Underhill Consulting Engineers, P.C. ("Underhill"), George R. Underhill ("George Underhill"), Steven F. Carini ("Carini") and Derek R. Hartzell ("Hartzell") (collectively "defendants") alleging breach of contract and that certain defendants, including Hartzell committed professional negligence in performing their work for plaintiffs.
Hartzell, proceeding pro se moves to dismiss the Complaint as to him on grounds that: (1) there were no problems relating to the design of the monopoles and/or towers approved by Hartzell, which Crown claims are defective; (2) one of the designs for the monopoles he approved that Crown contends was defective, was completed while he was an employee of Nudd; and (3) Crown did not comply with the time limits for responding to interrogatories. Plaintiff Crown opposes the motion on the grounds that it has stated a cause of action against Hartzell and issues of fact preclude Hartzell's dismissal at this time.
For the reasons set forth below, Hartzell's motion to dismiss seeking to be dismissed from this action is denied.
Crown filed a Complaint against defendants on April 8, 2005 alleging that Nudd designed, fabricated and constructed monopoles for Crown that contained numerous design and construction defects. Crown also alleged that the other defendants were professional engineers who prepared and/or reviewed the defective and faulty drawings and/or specifications used by Nudd to construct the defective monopoles. Specifically, Crown alleged that Hartzell performed engineering and consulting services for Nudd on the Crown and/or Crown-acquired monopoles. In addition, Crown claimed that Hartzell prepared and/or reviewed the defective and faulty drawings and/or specifications used by Nudd to construct the Crown and/or Crown-acquired monopoles. According to Crown, Hartzell's work failed to meet generally accepted industry standards.
On June 6, 2005, Hartzell filed a letter to answer the allegations of the Complaint. In his Answer, Hartzell generally denies the allegations in the Complaint regarding the defective monopole designs. However, Hartzell admits that he performed work for Nudd. In Hartzell's letter in support of his motion to dismiss, Hartzell argues that the monopoles identified by numbers 801344, 816574, 816603, 816633, 816666, 816686, 816697 and 816734 "met all current standards" and there are no "problems relating to the design of any of these 8 towers approved" by Hartzell. See Hartzell's Motion at p. 1. There were two other monopoles that Crown alleges Hartzell designed and reviewed and are identified by numbers 816716 and 851875. Hartzell contends that he reviewed monopole number 851875 while employed by Nudd and thus any liability arising from this monopole is the legal responsibility of Nudd. As to monopole number 816716 Hartzell argues that it was designed for construction under Carini and not Hartzell.
Furthermore, Hartzell requests that he be dismissed from this case due to Crown's failure to abide by strict time limits for responding to interrogatories. Counsel to Underhill served interrogatories to Crown on December 20, 2005. Crown and Underhill agreed to an extension of time to respond to the interrogatories. On March 24, 2006, Crown served its answers to Underhill's interrogatories on all defendants. In it's answers, Crown agreed to make available for inspection and copying the various structural analysis reports prepared by Crown's consultant that detail the defective conditions of the monopoles at issue in this case.
I. Defendant's Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of the complaint where the plaintiff has failed to state a claim upon which relief can be granted. When evaluating a Rule 12(b)(6) motion, the court must ascertain, after presuming all factual allegations in the pleading to be true and viewing them in the light most favorable to the plaintiff, whether or not the plaintiff has stated any valid ground for relief. Ferran v. Town of Nassau, 11 F.3d 21, 22 (2nd Cir. 1993), cert. denied, 513 U.S. 1014, 115 S.Ct. 572 (1994). The court may grant a Rule 12(b)(6) motion only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). For the reasons set forth below, I hereby deny Hartzell's motion to dismiss seeking dismissal from this action.
II. Crown Has Stated a Professional Negligence Claim Against Hartzell and Issues of Fact Preclude Hartzell's Dismissal
To plead a professional negligence claim, a plaintiff must allege that in performing services, defendant departed from the accepted standards of practice and that departure was a proximate cause of the harm to plaintiff. See Bastys v. Rothschild, 2000 WL 1810107 *52 (S.D.N.Y. 2000); Herbert H. Post & Co. v. Sidney Bitterman, Inc., 219 A.D.2d 214 (1st Dept. 1996). Here, in support of its professional negligence claim against Hartzell, Crown has specifically alleged that: 1) Hartzell was obligated to provide professional engineering and design services to Crown in accordance with the monopoles specifications and generally accepted industry standards; 2) Hartzell owed Crown a duty to utilize his professional skill, knowledge and expertise in accordance with applicable professional standards; 3) Hartzell breached his professional duty of care by failing to design monopoles in ...