American Security Insurance Company, AS SUBROGEE OF MICHAEL R. TOPPIN AND TOPPIN & TOPPIN, ATTORNEYS AT LAW, AND MICHAEL R. TOPPIN AND TOPPIN AND TOPPIN, ATTORNEYS AT LAW, Plaintiffs,
Church of God of St. Albans, MIKE'S CONTRACTING BUILDING AND DEVELOPMENT, CORP., EURO DECO MANAGEMENT CORP., FIRST NEW YORK CONSTRUCTION, MILTIADIS LEPTOURGOS, P.E., HAROLD E. GEBHARD A.I.A. and VERSATILE ENGINEERING, P.C., Defendants.
Robert J. McDonald, J.
The following papers numbered 1 to 30 read on this motion by plaintiff Michael R. Toppin for summary judgment on the issue of liability as against Church of God of St. Albans, Mike's Contracting, Building and Development Corp., and Harold E. Gebhard, A.I.A.; and cross motion by defendant Miltiadis Leptourgos, for summary judgment in his favor pursuant to CPLR 3212.
Notice of Motion - Affidavits - Exhibits1 - 7
Notice of Cross Motion - Affidavits - Exhibits8 - 13
Answering Affidavits - Exhibits14 - 24
Reply Affidavits25 - 30
Upon the foregoing papers it is ordered that the motion is granted and the cross motion is denied, as premature, with leave to renew.
This is an action to recover for damages sustained to property owned by plaintiffs, located at 223-05 Hempstead Avenue, Queens Village, New York. The damages at issue occurred between July and September of 2009. Plaintiff Michael R. Toppin is the owner of a building located at 223-05 Hempstead Avenue in Queens. Plaintiff Toppin & Toppin, Attorneys at law are commercial tenants operating a law firm in the building. The adjacent property, 223-07 Hempstead Avenue, is owned by defendant the Church of God of St. Albans (Church of God). In 2009, the Church of God began the construction of a two-story church building on site. The Church of God hired defendant Euro Deco Management Corp (Euro), as the project's general contractor, and hired defendant Mike's Contracting Building and Development Corp., and First New York Construction, to excavate the site.
As the excavation progressed, 223-05 Hempstead Avenue sustained severe damage as a result of improper and deficient sheeting, shoring and underpinning. On September 25, 2009, the Department of Buildings (DOB) found that there were problems with the excavation and on September 29, 2009, issued a Full Vacate Order directing plaintiffs to vacate their property. Plaintiffs commenced an action against the various parties, claiming that defendants were negligent and strictly liable under, inter alia, Administrative Code of the City of New York § 27-1031 (b) (1) for causing damage to 223-05 Hempstead Avenue. Plaintiff Michael R. Toppin moves for summary judgment in his favor on the issue of liability as against defendant Church of God, Mike's Contracting and Harold E. Gebhard, A.I.A., on the ground that violation of § 27-1031 (b) (1) of the Administrative Code is absolute evidence of liability. Defendants oppose the motion on the ground that they took adequate precautions against damage to the adjourning property, and otherwise contend that the motion is premature. Defendant Miltiadis Leptourgos cross moves for summary judgment in his favor on the ground that his post-damage architectural plans were not used at all in the project and thus he bears no liability for any damage to 223-05 Hempstead Avenue. The cross motion is opposed.
Construction work at the Church of God property began in June or July of 2009. During the course of said construction activities, plaintiffs' property sustained damage as a result of improper and deficient sheeting, shoring and underpinning operations. As a result of the damage, the New York Department of Buildings (DOB), issued an Order, on or about September 25, 2009, directing the plaintiffs to vacate their property. Once the DOB issued the Full Vacate Order, all construction activities on the Church of God property ceased.
In an effort to resolve the problem, the Church of God thereafter retained Leptourgos, a professional engineer, for the purpose of designing proposed remedial plans and procedures to attempt to remedy plaintiffs' structurally-compromised foundation, and to allow the Church of God construction to resume. Leptourgos prepared engineering plans, dated June 26, 2010, for the implementation of structural and foundation work to be performed on the Church of God property while also addressing plaintiffs' foundation. As plaintiffs' property ...