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Sendar Development Co., LLC v. CMA Design Studio P.C.

December 10, 2009

SENDAR DEVELOPMENT CO., LLC, ETC., PLAINTIFF-RESPONDENT,
v.
CMA DESIGN STUDIO P.C., ETC., ET AL., DEFENDANTS-RESPONDENTS,
KEVIN H. SWEENEY, P.E., DEFENDANT-APPELLANT,
R & L GENERAL CONTRACTING, INC., ET AL., DEFENDANTS.



Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 22, 2008, which denied defendant Sweeney's motion to dismiss the amended complaint and cross claims against him, unanimously reversed, on the law, with costs, the motion granted and the amended complaint and all cross claims against said defendant dismissed. The Clerk is directed to enter judgment accordingly.

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.

Gonzalez, P.J., Nardelli, Catterson, Moskowitz, Renwick, JJ.

600731/07

In 1998, plaintiff Sendar Development Co., LLC acquired a six-story residential building on the Upper West Side of Manhattan. The following year, plaintiff decided to expand the building by adding five additional floors to the top of the building. Subsequently, plaintiff and its agent Jadam Equities, Ltd. (Jadam) hired defendants CMA Design Studio P.C. (CMA), Breger Terjesen Associates (Breger), and Kevin H. Sweeney, P.E. (Sweeney) to design the expansion and supervise the contractors, defendants R & L Construction, Inc. (R & L) and Williams Panel Brick (Williams).

Plaintiff hired CMA and Breger to design the expansion; that is, to prepare, approve, and sign off on the architectural plans for the expansion. Both CMA and Breger agreed to supervise, inspect, approve the construction of the expansion, including the exterior walls, and provide contract administration services for the project. Furthermore, Breger proposed using the EZ Wall system for the exterior of the project; this is the central point of dispute in this action.

R & L was hired by plaintiff to assemble and install the EZ Wall system, which consists of brick face tile with mortar joints, adhered to a continuous anodized metal support panel laid against a continuous vapor barrier membrane. This is supported by building sheathing constructed of layers of gypsum boards. The gypsum boards, along with the light gauge metal studs, are connected to the metal support panels to form the building's exterior. The record reflects that Sweeney's scope of work, as specified in his contract, was to provide structural engineering services solely for the framing of the additional five floors.

Prior to the expansion being completed in October 2002, the title to the building was transferred from plaintiff to the condominium association. In Spring of 2004, two years after the expansion was completed, hallway tiles began to crack and water leaked in around the apartment windows in the expansion area. In July 2004, Sweeney was again hired by plaintiff but was asked only to inspect the cracking and leaks. He determined that there was no structural cause for the cracking and the leaks, and was paid $650 for the inspection.

Following Sweeney's 2004 inspection, severe water leakage continued throughout the entire building. Independent engineering consultants were called in to inspect the building and they found that the leaks were caused by serious defects in the EZ Wall system. They also determined that the system was improperly installed and was not suitable for this application. The experts found that the entire facade needed to be replaced at a substantial cost. Plaintiff agreed to replace the existing wall system, and, in exchange, the condominium association assigned to plaintiff its litigation rights.

On June 26, 2007, plaintiff filed an amended complaint against Sweeney, CMA, Breger, R & L, and Williams, alleging 15 causes of action, including breach of contract, negligence, and indemnification. CMA, R & L, and Breger asserted cross claims for contribution and/or indemnification against all the co-defendants including Sweeney. On August 16, 2007, Sweeney moved to dismiss the amended complaint and cross claims against him.

In support of his motion, Sweeney, on the basis of his contract, asserted, inter alia, that he did not agree to indemnify any other party, that his contract specified he was required to provide structural engineering services only for the light gauge steel framing of the expansion, and that his contract expressly excluded services such as site visits, inspections, shop drawing review, and panel drawing review. Although Sweeney admitted that he verbally agreed to provide additional services related to the written agreement such as controlled inspections, Sweeney contends that these controlled inspections were required by the New York City Building Code in connection solely with the structural construction of the light gauge steel framing, and not for parts of the project or construction designed or specified by other design professionals relating to the exterior wall system.

Sweeney further demonstrated that his work was completed on October 11, 2002, when he sent a letter to the New York City Department of Buildings (DOB) requesting a letter of final completion. He received the letter of final completion from the DOB a month later. Sweeney, by providing documentary evidence of the date he completed his work, asserts that plaintiff's claims are time-barred since it commenced its action in March 2007 almost two years after the three-year statue of limitations had expired in October 2005.

In opposition, plaintiff stated that since Sweeney inspected the expansion in Spring 2004, its claim did not accrue until then and, thus, its cause of action is not time-barred. Plaintiff claims that the statute of limitations was tolled by the continuous representation doctrine since the inspection in 2004 clearly shows that Sweeney continued his professional responsibility to plaintiff. Plaintiff submitted the affidavit of the building manager, Michael Alejandro, who stated that while Sweeney did not find any structural cause for the leakage and cracking during his inspection in 2004, a more thorough inspection of the facade would have revealed early signs that the EZ Wall system was indeed failing. Lastly, plaintiff stated that additional discovery was needed in order to afford it to develop and show that Sweeney's Spring 2004 inspection was a step in the continuous and interrelated service that Sweeney provided.

The motion court agreed with plaintiff and denied Sweeney's motion to dismiss, rejecting Sweeney's assertion that plaintiff's complaint was time-barred. It found that the issues present in the motion could not be resolved without discovery in order "to at ...


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