Board of Mgrs. of Schumacher Condominium v. 304 Mulberry St. Operating Co., L.L.C.

2024 NY Slip Op 33841(U)

• Court: New York Supreme Court, New York County
• Decided: October 28, 2024
• Docket: Index No. 150296/2021
• Status: Unpublished

Opinion

Board of Mgrs. of Schumacher Condominium v 304 Mulberry St. Operating Co., L.L.C. 2024 NY Slip Op 33841(U) October 28, 2024 Supreme Court, New York County Docket Number: Index No. 150296/2021 Judge: Louis L. Nock Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 150296/2021 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/28/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LOUIS L. NOCK PART 38M Justice ---------------------------------------------------------------------------------X INDEX NO. 150296/2021 BOARD OF MANAGERS OF SCHUMACHER CONDOMINIUM, and 36 BLEECKER STREET LLC, MOTION DATE 01/09/2024

Plaintiffs, MOTION SEQ. NO. 002

-v- 304 MULBERRY STREET OPERATING COMPANY, L.L.C., BROAD STREET DEVELOPMENT, LLC, FOUNDATIONS DECISION + ORDER ON GROUP I, INC., BENCHMARK CONTRACTING INC., LONG ISLAND CONCRETE INC., and LANGAN MOTION ENGINEERING AND ENVIRONMENTAL SERVICES, INC.,

Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 162, 168, 169, 170, 171, 172, 173, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 202, 203, 204, 205, 207, 208, and 214 were read on this motion for SUMMARY JUDGMENT .

LOUIS L. NOCK, J.S.C.

This action arises out of an excavation adjacent to the building located at 36 Bleecker

Street, New York, New York (the “adjoining premises”), at the construction project located at

304 Mulberry Street (the “project”), which excavation is alleged to have damaged the adjoining

premises. Presently before the court is plaintiffs’ motion for summary judgment on their first

cause of action for strict liability under the Building Code in favor of plaintiff the Board of

Managers of the Schumacher Condominium (the “Board”). Defendant Long Island Concrete

Inc. (“LIC”) cross-moves for summary judgment dismissing the third and fourth causes of action

to the extent asserted against it, as well as any cross-claims by the other defendants based on

those causes of action. The motion for summary judgment is granted as to liability only, and the

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cross-motion for summary judgment is dismissed as academic, in accordance with the following

memorandum decision.

Background

The Parties1

The Board is the governing body of the adjoining premises. Plaintiff 36 Bleecker Street

LLC (“36 Bleecker”) owns one of the units purportedly damaged by defendants’ excavation

work. The damage to 36 Bleecker’s unit is not the subject of the present motion.

Defendant 304 Mulberry Street Operating Company, L.L.C. (“304 Mulberry”) owns the

building at which the project was located (license agreement, NYSCEF Doc. No. 119).

Defendant Broad Street Development, LLC (“Broad Street,” and collectively with 304 Mulberry,

“Owner”) is a parent or affiliate of 304 Mulberry (Bass aff., NYSCEF Doc. No. 106, ¶ 5). 304

Mulberry hired defendant Foundations Group I, Inc. (“Foundations Group”) as construction

manager for the project, which was to demolish the old building located at 304 Mulberry Street

and construct a new twelve-story building (construction manager agreement, NYSCEF Doc. No.

115), and Foundations Group subcontracted the excavation work to defendant Long Island

Concrete Inc. (“LIC”) (subcontract, NYSCEF Doc. No. 116). Defendant Langan Engineering

and Environmental Services, Inc. (“Langan”), provided “Geotechnical Engineering services” for

the project, including the designs and plans ultimately used for the excavation (Langan

agreement, NYSCEF Doc. No. 117 at 15-20 of 119).

The Project

The actual facts of the events leading to the damage to the adjoining premises are largely

undisputed. On May 30, 2017, the Board and Owner entered into a license agreement, pursuant

1 Defendant Benchmark Contracting Inc. (“Benchmark”) is not implicated by the motion. 150296/2021 BOARD OF MANAGERS OF vs. 304 MULBERRY STREET Page 2 of 9 Motion No. 002

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to which Owner would, among other things, arrange for certain protective devices and monitors

to be installed at the adjoining premises to protect the adjoining premises from damage caused

by the project (license agreement, NYSCEF Doc. No. 119 at 1). Installation of the monitors was

completed on May 12, 2017, and the excavation and foundation work on the project commenced

on November 22, 2017 (Bass aff., NYSCEF Doc. N0. 106, ¶ 9; Notice of Installation, NYSCEF

Doc. No. 125; notice of commencement, NYSCEF Doc. No. 126).

The Board retained nonparty Howard L. Zimmerman Architects & Engineers

(“HLZAE”) as a consultant to review Langan’s plans, inspect the adjoining premises for

damages, and review the monitoring reports provided by Owner’s monitoring subcontractor,

nonparty Domani Inspection Services (“Domani”) (Bass aff., NYSCEF Doc. No. 106, ¶ 11;

Tajzler aff., NYSCEF Doc. No. 107, ¶¶ 4-8). Beginning in October 2018 and continuing through

September 2020, HLZAE observed interior damage in the A-line units of the adjoining premises,

as well as inoperable windows and step-cracking in the exterior facades of the building (Tajzler

aff., NYSCEF Doc. No. 107, ¶ 10; inspection reports 20, 23, 26, 28R, 37, NYSCEF Doc. No.

133). Alexei Tajzler, HLZAE’s resident engineer and Director, opines that the damage was

caused by the excavation designed by Langan, and carried out by Foundations Group and LIC

(Tajzler aff., NYSCEF Doc. No. 107, ¶ 11). HLZAE then retained nonparty Musler Rutledge

Consulting Engineers (“MCRE”) to provide an additional opinion (id., ¶ 12). Michael T.

McMaster, a professional engineer employed by MRCE, reviewed the project record and came to

the same conclusion (McMaster aff., NYSCEF Doc. No. 108, ¶ 8; MCRE report, NYSCEF Doc.

No. 131). HLZAE also opined that the cost to repair the damage is $350,000, based on bids

obtained from several contractors (Tajzler aff., NYSCEF Doc. No. 107, ¶ 13; bid analysis,

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NYSCEF Doc. No. 157). Owner was informed of the damage to the adjoining premises by email

dated April 4, 2019 (NYSCEF Doc. No. 118).

Of the defendants, only Langan offers a competing expert analysis. Alan Poeppel, P.E., a

licensed engineer and Langan’s principal, admits that there was movement of the adjoining

premises, leading to the observed cracking and other damage (Poeppel aff., NYSCEF Doc. No.

172 at 10-12). However, he opines that Langan’s design work met all applicable standards for

such work, and that the damage to the adjoining premises was caused by LIC’s activities in

carrying out the excavation, as well as outside factors such as 36 Bleecker’s own

contemporaneous construction work (id. at 13-14). Saif Sumaida, Foundations Group’s

principal, avers that Foundations Group was retained after all excavation designs were

completed, and that Foundations Group did not alter the design, supervise LIC’s work on the

excavation, or carry out the excavation itself (Sumaida aff., NYSCEF Doc. No. 176, ¶¶ 8-13).

Standard of Review

Summary judgment is appropriate where there are no disputed material facts (Andre v

Pomeroy, 35 NY2d 361, 364 [1974]). The moving party must tender sufficient evidentiary proof

to warrant judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562

[1980]). “Failure to make such prima facie showing requires denial of the motion, regardless of

the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]

[internal citations omitted]). Once a movant has met this burden, “the burden shifts to the

opposing party to submit proof in admissible form sufficient to create a question of fact requiring

a trial” (Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]). “[I]t is

insufficient to merely set forth averments of factual or legal conclusions” (Genger v Genger, 123

AD3d 445, 447 [1st Dept 2014] [internal citation omitted]). Moreover, the reviewing court

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should accept the opposing party's evidence as true (Hotopp Assocs. v Victoria's Secret Stores,

256 AD2d 285, 286-287 [1st Dept 1998]), and give the opposing party the benefit of all

reasonable inferences (Negri v Stop & Shop, 65 NY2d 625, 626 [1985]). Therefore, if there is

any doubt as to the existence of a triable fact, the motion for summary judgment must be denied

(Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).

Discussion

The Motion

The first cause of action is for strict liability pursuant to Section 3309 of the New York

City Building Code (the “Building Code”). The Building Code provides that “[a]djoining public

and private property, including persons thereon, shall be protected from damage and injury

during construction or demolition work” (NY City Bldg Code [Administrative Code of City of

NY, title 28, ch 7] § BC 3309.1).

Whenever soil or foundation work occurs, regardless of the depth of such, the person who causes such to be made shall, at all times during the course of such work and at his or her own expense, preserve and protect from damage any adjoining structures, including but not limited to footings and foundations, provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose.

(NY City Bldg Code § BC 3309.4.) Where excavation work proximately causes damage

to an adjoining property, the owner, construction manager, and excavation subcontractor

are strictly liable for said damages (DFAWEAST, LLC v Friedland Properties Inc., 211

AD3d 462 [1st Dept 2022]). Liability also extends to design professionals who

“substantially contributed to the design and methodology employed during the excavation

process” (Georgitsi Realty, LLC v Armory Plaza, Inc., 213 AD3d 641, 648 [2d Dept

2023]).

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Here, plaintiffs have established prima facie entitlement to summary judgment for

the Board on the alleged violation of the Building Code, as the damage to the adjoining

premises is undisputed, and plaintiffs have provided expert testimony that the damage

was caused by the excavation work (DFAWEAST, LLC, 211 AD3d at 462). Owner,

Langan, Foundations Group, and LIC do not dispute the roles that they played in the

excavation. In opposition, these defendants fail to raise a triable issue of fact (Kershaw,

114 AD3d at 82). Where a party establishes prima facie entitlement to summary

judgment with expert testimony, an attorney affirmation on its own is insufficient to raise

a factual issue (e.g. Farrell v Ted's Fish Fry, Inc., 196 AD3d 893, 895 [3d Dept 2021]).

Only Langan submits an expert affidavit; Sumaida’s affidavit is not expert testimony and,

in any case, does not dispute the damage to the building or Foundations Group’s role as

construction manager. Contrary to Foundations Group’s argument, liability attaches to

the construction manager as a matter of law (DFAWEAST, LLC, 211 AD3d at 462).

Defendants’ citations to case law purportedly exonerating them for such liability are

factually distinguishable (e.g. Moskowitz v Tory Burch LLC, 161 AD3d 525, 526 [1st

Dept 2018] [evidence establishing damages was party admission of owner, and therefore

inadmissible as against architect and construction manager]; 492 Kings Realty, LLC v 506

Kings, LLC, 105 AD3d 991, 995 [2d Dept 2013] [dismissing claim against Domani

because it provided monitoring services and did not proximately cause plaintiff’s

damages]).

Defendants also fail to raise an issue of fact as to causation. All of the responding

defendants make one or both of the following arguments: that either the poor condition of

the building prior to the excavation or other causes such as 36 Bleecker’s

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contemporaneous construction work is the proximate cause of the Board’s damages.

Neither argument is availing. The condition of a building prior to adjoining excavation

does not factor into the proximate cause analysis under Section 3309.4 (211-12 N. Blvd.

Corp. v LIC Contr., Inc., 186 AD3d 69, 82 [2d Dept 2020]). Further, the Board is not

required to rule out any potential competing cause of its damages; it need only establish

that the excavation caused at least some part thereof (DFAWEAST, LLC, 211 AD3d at

463). Langan’s arguments regarding whether it exercised the requisite due care in its

work are also irrelevant; “[w]hen the facts bring the case within the statute, the duty and

liability which the statute imposes is absolute and unqualified” (Yenem Corp. v 281

Broadway Holdings, 18 NY3d 481, 490 [2012], citing Dorrity v Rapp, 72 NY 307 [1878]

[interpreting predecessor statute]).

Having found for the Board in terms of liability, however, the court finds that

plaintiff has not met its prima facie burden as to the amount of its damages. The measure

of real property damages is traditionally the lesser of the diminution of value of the

property or the cost of restoration (e.g. Arcamone-Makinano v Britton Prop., Inc., 156

AD3d 669, 672 [2d Dept 2017], lv denied 31 NY3d 907 [2018]). Tajzler opines that the

repair cost is $350,000, but the bid analysis submitted by plaintiffs includes four bids,

none of which are that high; the bid for Metro R Services is $340,291, and the bids from

the other three contractors are all below $300,000 (bid analysis, NYSCEF Doc. No. 157

at 2). While plaintiff is correct that it is incumbent on defendants to establish that the

repair costs are lower to raise a triable issue of fact, here plaintiff’s initial submission is

contradictory. Moreover, Tajzler does not address the manner in which he reached his

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opinion in detail and does not explain the difference between his opinion and the actual

bids received. Accordingly, the issue of damages must await trial.

Finally, defendants’ assertion that discovery is necessary before this motion can be

resolved is unavailing. Defendants do not establish that facts “essential to justify opposition may

exist but cannot [now] be stated” (CPLR 3212[f]; Morales v Amar, 145 AD3d 1000, 1003 [2d

Dept 2016] [The “mere hope or speculation that evidence sufficient to defeat a motion for

summary judgment may be uncovered during the discovery process is an insufficient basis for

denying the motion”]).

The Cross-Motion

LIC cross-moves to dismiss the third and fourth causes of action against it, as well as any

cross-claims asserted against it based upon such causes of action. The amended complaint

plainly states that the third and fourth causes of action are brought solely against 304 Mulberry

for breach of the license agreement (amended complaint, NYSCEF Doc. No. 110 at 15-17).

Accordingly, there is nothing to dismiss against LIC. 304 Mulberry, the only defendant who is a

party to the license agreement, does not allege a cross-claim arising out of the license agreement

against LIC. Again, as there is no cross-claim to dismiss, the cross-motion is dismissed as

academic.

Accordingly, it is hereby

ORDERED that plaintiffs’ motion for partial summary judgment on the first cause of

action in favor of plaintiff the Board of Managers of the Schumacher Condominium and against

defendants 304 Mulberry Street Operating Company, L.L.C., Broad Street Development, LLC,

Foundations Group I, Inc., Long Island Concrete Inc., and Langan Engineering and

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Environmental Services, Inc. is granted to the extent that said defendants are found liable to said

plaintiff on the first cause of action; and it is further

ORDERED that the amount of damages to which said plaintiff is entitled shall be

determined at the trial of this matter; and it is further

ORDERED that defendant Long Island Concrete Inc.’s cross-motion for partial summary

judgment is dismissed as academic for the reasons set forth above.

This constitutes the decision and order of the court.

ENTER:

10/28/2024 DATE LOUIS L. NOCK, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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