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Crown Castle USA Inc. v. Fred A. Nudd Corp.

March 1, 2007


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., George R. Underhill (collectively ("Underhill"), Steven F. Carini ("Carini") and Derek R. Hartzell (collectively "defendants") alleging breach of contract and professional negligence as to certain defendants in performing their work.

Underhill moves for summary judgment seeking dismissal of Crown's professional negligence claim regarding thirty-seven of the thirty-nine monopoles*fn1 at issue in this case. Underhill claims that it seeks summary judgment with regard to twenty-two monopoles for which it has no relationship and for which it provided no professional services. In addition, summary judgment is also sought concerning the remaining fifteen monopoles since any professional services Underhill may have provided were completed on or before November 1, 2001, a date more than three years before the commencement of this action on April 8, 2005 and thus barred by the statute of limitations under New York's CPLR 214(6). Further, Underhill moves for summary judgment dismissing Carini's cross-claim for contribution and indemnity.*fn2

Crown opposes Underhill's motion, and contends that discovery in this case is ongoing and the facts that have been developed to date indicate that there are numerous questions of fact, which preclude this Court from granting Underhill's motion. Moreover, Crown argues that under Federal Rule of Civil Procedure 56(f), this Court should allow the parties to continue with discovery since additional discovery will develop facts related to Underhill's knowledge of the defect in Nudd's monopoles, the time period for which Underhill provided professional services to Nudd and Crown and Underhill's alleged failure to inform Crown of the alleged potential and/or actual problems with the monopoles.

For the reasons set forth below, Underhill's motion for summary judgment seeking dismissal with respect to Crown's professional negligence claim is denied and Underhill's motion for summary judgment seeking dismissal of Carini's cross-claims for contribution and indemnity is also denied.


Crown filed a Complaint against defendants on April 8, 2005 alleging that Nudd designed, fabricated and constructed monopoles for Crown that contained design and construction defects. Crown also alleged that the other defendants were engineers who prepared and/or reviewed the defective drawings and/or specifications used by Nudd to construct the defective monopoles. Specifically, Crown's professional negligence claim against Underhill alleges that Underhill failed to exercise the requisite professional skill in reviewing the design documents for the monopoles.

The design of the monopoles was initially created by Nudd. However, Nudd also hired independent engineers to review and stamp the design documents for each monopole. Underhill verbally agreed with Nudd to review and stamp the design documents of certain monopoles. Further, Nudd hired Carini and Hartzell to review and stamp certain of the monopoles not reviewed by Underhill. According to Underhill, there was no contractual relationship between Crown or any of the other entities which purchased monopoles from Nudd. Similarly, Underhill had no contractual relationship with Carini or Hartzell and professional services provided by Underhill were separate from services provided by other defendants.

Underhill argues that its professional services were limited to reviewing and then stamping the design documents for certain of the monopoles at issue. Underhill's professional services with regard to those poles were completed no later than the date the design documents were stamped. Of the thirty-nine monopoles Crown has verified the following: Underhill provided services for ten of the monopoles; no engineer has been identified as having provided professional services for seven of the monopoles; and an engineer other than Underhill is identified as having provided professional services for the remaining twenty-two monopoles. See Affidavit of George Underhill. Crown concedes that the identities of the monopoles are not in dispute and to the best of its knowledge, Crown has identified which engineer performed the original monopole design.*fn3 Affidavit of Kevin Barley. However, Crown contends that this information was based on Crown's preliminary investigation and is subject to change due to the fact that discovery is ongoing.

Moreover, Crown claims that Nudd has not produced all documents responsive to Crown's discovery requests. While the parties have exchanged certain documents, Crown expects that additional documents, especially from Nudd, will be produced. Further, no depositions have been taken. Crown contends in their opposition filed on September 22, 2006 that defendants proposed that discovery not close for an additional six months. Indeed, on November 3, 2006 United States Magistrate Judge Marian W. Payson issued an amended scheduling order resetting deadlines for discovery (now due March 30, 2007), expert disclosure (April 16, 2007) and dispositive motions (by June 29, 2007).


I. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." When considering a motion for summary judgment, all inferences and ambiguities must be resolved in favor of the party against whom summary judgment is sought. R.B. Ventures, Ltd. v. Shane, 112 F.3d 54 (2d Cir. 1997). If, after considering the evidence in the light most favorable to the nonmoving party, the court ...

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