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Wing Wong Realty Corp v. Flintlock Construction Services

May 24, 2012


Wing Wong Realty Corp. v Flintlock Constr. Servs., LLC

Decided on May 24, 2012

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.

Mazzarelli, J.P., Saxe, Catterson, Roman, JJ.

Order, Supreme Court, New York County (Debra A. James, J.), entered February 10, 2011, which, insofar as appealed from as limited by the briefs, denied the motion of third-party defendants R.A. Consultants, LLC and Robert Alperstein, P.E. for summary judgment dismissing the third-party complaint as against them, affirmed, without costs.

Plaintiff alleges damage to its building as a result of excavation work at the adjacent construction site owned by defendant Well-Come Holdings. Third-party defendants, the project's engineering consulting firm and its principal (together, Alperstein), failed to establish prima facie that as a matter of law they could not be held responsible in part for the damage. Alperstein's responsibilities included reviewing the plans for the underpinning and recommending modifications to them; yet, their expert, while asserting that Alperstein had acted in accordance with good and accepted engineering practice, failed to indicate either that he had examined the excavation site or reviewed the drawings of the shoring and underpinning that were alleged to be faulty, let alone the particular elements of the design to which Alperstein proposed changes. Alperstein's expert therefore failed to establish that he possessed the necessary evidentiary basis for his conclusion (see Cassano v Hagstrom, 5 NY2d 643, 646 [1959]). Accordingly, third-party plaintiffs were not obligated to submit expert opinion in opposition to the motion.

The claim for contribution was properly asserted, since the property damage claim was not merely cast in breach of contract, but was based on theories of negligence and statutory liability (see Structure Tone, Inc. v Universal Servs. Group., Ltd., 87 AD3d 909, 911 [2011]). It would be premature to dismiss the claims for common-law indemnification and contribution, since it has yet to be determined whether third-party plaintiffs were at fault and barred from indemnification. Whether Alperstein was at fault and liable for contribution or indemnification also has yet to be determined, since issues of fact exist as to Alperstein's role in the design of the shoring and underpinning and whether any act or omission on its part caused damage to plaintiff's building.

We have considered Alperstein's other contentions and find them unavailing. All concur except Catterson, J. who dissents in a memorandum as follows: CATTERSON, J. (dissenting)

In this action, the defendant/third-party plaintiff, Versatile Consulting and Testing Services acknowledged at oral argument that the record contains no facts to support its opposition to third-party defendants' summary judgment motion. Yet it raises a novel argument in the context of third-party summary judgment motion practice: It essentially urges us to adopt an exception as to non-movant's burden to raise a triable issue of fact, asserting that to do so at this stage will undermine its position in the main action. Unfortunately, because the CPLR does not allow for any such exception, I must respectfully dissent.

The following facts are undisputed: third party plaintiff Versatile and its principal Roman Sorokko, a construction subcontractor, brought a third-party negligence claim against, inter alia, R.A. Consulting, an engineering firm, and its principal Robert Alperstein, stemming from damages to a building owned by Wing Wong Realty, the plaintiff in the main action.

Versatile was hired by co-defendant Well-Come Holdings to prepare, among other things, plans for the shoring and underpinning of a lot at 106 Mott Street in Chinatown. The lot is adjacent to a building at 102-104 Mott Street owned by Wing Wong. The excavation and underpinning of the lot was to be carried out by general contractor Flintlock Construction and subcontractor Diamond Point Excavating Corp., both co-defendants in the principal action.

Well-Come contracted separately with R.A. Consulting, to act as the geotechnical consulting engineer for the project. R.A. Consulting's role included sampling soil at the site and making recommendations for the requirements of the underpinning design. Wing Wong alleges that its property was damaged during the excavation of the neighboring lot. As a result, the building was deemed unsafe and ordered vacated by the Department of Buildings (hereinafter referred to as "DOB"). Wing Wong filed a claim against, inter alia, Flintlock, Sorokko, and Versatile, for damages to the building and lost rents. Wing Wong's claims against Sorokko and Versatile were for strict liability pursuant to § 27-1031 of the Administrative Code of the City of New York, and for negligence related to its work and/or supervision at the premises.

Versatile subsequently initiated a third-party action against R.A. Consulting for contribution and common-law indemnification. R.A. Consulting moved for summary judgment, arguing that it served only as a consultant to the project and made recommendations for the designs on request. Moreover, R.A. Consulting argued that Versatile was not entitled to indemnification because there was no privity of contract between the parties, and that contribution is not available where damages are based on contract. In addition, R.A. Consulting submitted an expert affidavit from Rudolph Frizzi, an engineer who opined that the recommendations made by R.A. Consulting were in accordance with good and accepted engineering practices and did not contribute to Wing Wong's damages.

In opposition, Versatile responded that, notwithstanding its contractual obligations, R.A. Consulting was "actively involved in shaping the final, filed underpinning and shoring designs." The motion court denied summary judgment to R.A. Consulting, holding that its expert failed to establish "the propriety of each of the requested revisions," and that R.A. Consulting's role in the oversight of Versatile's work was unclear. The motion court reasoned ...

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