Gross v. Ismael Leyva Architect, P.C.

2017 NY Slip Op 9242, 156 A.D.3d 558, 65 N.Y.S.3d 708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 2017
• Docket: 5283 153081/16
• Status: Published

Opinion

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered June 9, 2017, which denied as premature the motion of defendant Ismael Leyva Architect, PC. (ILA) to dismiss the complaint as against it, unanimously affirmed, without costs.

ILA has not established entitlement to dismissal of the negligence claim as against it. The amended agreement indicating that it agreed to perform “Construction Observation (Quality Control) other than those included in Architect’s [Construction Administration] responsibilities during site visits,” raises questions as to whether ILA was responsible for inspecting the excavation and underpinning and, if so, whether it properly performed such work (see e.g. 27 Jefferson Ave., Inc. v Emergi, 18 Misc 3d 336, 340-341 [Sup Ct, Kings County 2007]). Thus, the motion court properly denied the motion “with leave to bring it again after depositions.” Notably, the cases upon which ILA relies were decided at the summary judgment stage, after the completion of discovery (see e.g. 87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540 [1st Dept 2014]; 492 Kings Realty, LLC v 506 Kings, LLC, 105 AD3d 991 [2d Dept 2013]).

Concur—Acosta, P.J., Richter, Mazzarelli, Andrias and Gesmer, JJ.