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Children's Corner Learning Center v. A. Miranda Contracting Corp.

May 21, 2009


Third-party defendants George E. Berger & Associates, LLC and JAM Consultants, Inc., appeal from an order of the Supreme Court, Bronx County (Wilma Guzman, J.), entered July 16, 2007, which, to the extent appealed from, denied their cross motions for summary judgment dismissing defendant-third-party plaintiff-respondent's common-law claims for contribution and/or indemnification.

The opinion of the court was delivered by: Mazzarelli, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Luis A. Gonzalez, P.J., Angela A. Mazzarelli, Richard T. Andrias, Karla Moskowitz & Dianne T. Renwick, JJ.

Index 22026/05 85253/06

In March 2004, plaintiff retained defendant Henry Loheac, P.C. to provide architectural services for plaintiff's planned conversion of premises it leased into a day care center. Plaintiff alleges that it advised Loheac that it intended to begin operating the day care center in January 2005. Plaintiff also claims that Loheac assured it that all necessary construction permits and licenses would be obtained by November 2004. Construction was delayed, causing the day care center to open approximately six months later than the target date of January 2005.

Thereafter, plaintiff commenced this action against Loheac, A. Miranda Contracting Corp. (plaintiff's general contractor), Newman Design Group (the architect retained by the building's owner), MF Electrical Service Co., Inc. (the electrical subcontractor hired by the general contractor) and High Rise Fire Protection Corp. (the fire alarm installer allegedly hired by either the general contractor or the electrical subcontractor). Plaintiff's claims against Loheac are found in the fourth, fifth and sixth causes of action in the complaint. In the fourth cause of action, plaintiff asserts Loheac breached its contract by, generally, failing to perform its work in a timely fashion. As a result, plaintiff alleges it was unable to obtain the licenses necessary to open a fully operational day care center in January 2005. Plaintiff says it was damaged because it:

"was caused to incur additional expenses to help correct the defective, faulty, improper and inadequate work caused by Loheac's breach of contract so that Plaintiff could open and operate as a fully licensed day care center..."

The fifth cause of action also sounds in breach of contract. Plaintiff claims that Loheac caused it "unanticipated, uncontemplated and/or unreasonable delay and disruption" by not obtaining the necessary licenses and permits for, and otherwise failing to properly supervise the installation of, a fire alarm system. In the fifth cause of action, plaintiff maintains it was damaged to the extent that it:

"has incurred, expended or has been deprived of payment and damaged for all consequential and inconsequential damages, including, but not limited to, those incurred for additional labor, supervision, supplies, material, equipment, and losses for rent and additional rent, loss of operating expenses, and lost profits..."

Plaintiff asserts in the sixth cause of action that Loheac was negligent in the performance of its duties, and that its acts and omissions constituted professional malpractice. The factual allegations supporting this cause of action are substantially similar to those underlying both the fourth and fifth causes of action. In the sixth cause of action, plaintiff claims that it was damaged to the extent that:

"opening of the day care center was severely disrupted and impeded and was rendered uneconomical and costly beyond its anticipation or reasonable expectation; among other things, Plaintiff was delayed from opening for six months, or more than 100% of the original contract period; Plaintiff's planned opening was delayed into seasons contrary to the original schedule; Plaintiff was forced to incur additional expenses to be able to open the day care center on an interim basis and on a full time basis; Plaintiff's initial advertising and initial operating costs were rendered a loss, as Plaintiff was unable to open as scheduled; Plaintiff was deprived of the benefit of its bargain with its landlord in that Plaintiff was unable to fully operate during the initial six month lease period in which Plaintiff had been given a 100% rent abatement; Plaintiff was deprived of the ability to collect revenues from which to pay, among other things, operating expenses; Plaintiff was deprived of its profits to be derived from the fully operational the day care center (sic) for approximately six months; the value of the Premises was diminished based upon Plaintiff's inability to utilize same in the manner intended, at the capacity intended and of which defendant was fully aware for approximately six months."

Loheac commenced a third-party action against, among others, appellants George E. Berger and Associates and JAM Consultants, Inc. The third-party complaint identified both Berger and JAM as having been retained by plaintiff, the building owner or the property manager "as an expediter with respect to the filing of applications, to obtain permits, licenses and other approvals of the work performed at the subject building including but not limited to the electrical system, fire sprinkler system and alarm system." Loheac alleges in the third-party complaint that Berger and JAM "failed to possess the requisite skill, knowledge and ability to obtain such permits" and that their "fail[ure] to obtain the necessary permits, approvals and licenses within a reasonable time period result[ed] in the delayed opening of the daycare center by the plaintiff and the alleged damages sustained as a result thereof." Loheac therefore seeks "common law contribution or indemnification" from Berger and JAM in the event it is found liable to plaintiff. In the third-party complaint Loheac also pleaded claims for contractual contribution or indemnification against Berger and JAM as well as damages based on the alleged failure of Berger and JAM to procure insurance on Loheac's behalf.

Defendant Newman Design Group moved, pursuant to CPLR 3211(a)(7), to dismiss plaintiff's complaint as against it. Berger and JAM separately cross-moved, under CPLR 3211(a)(7) and 3212, to dismiss the third-party complaint as against them. Berger argued that because plaintiff's complaint only sought economic loss damages from Loheac, no claim for common-law contribution or indemnification was available. Berger further stated that no agreements existed between it and Loheac that required it to indemnify Loheac or to procure insurance. JAM made the same arguments as Berger. ...

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