Jones v. Sharpe

Appellate Division of the Supreme Court of New York

Jones v. Sharpe

99 A.D.2d 859, 472 N.Y.S.2d 779, 1984 N.Y. App. Div. LEXIS 17273

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 2, 1984

StatusPublished

Cited by21 cases

This text of 99 A.D.2d 859 (Jones v. Sharpe) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. Sharpe, 99 A.D.2d 859, 472 N.Y.S.2d 779, 1984 N.Y. App. Div. LEXIS 17273 (N.Y. Ct. App. 1984).

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Appeals from a judgment of the Supreme Court in favor of plaintiff, entered February 28,1983 in Albany County, upon a decision of the court at Trial Term (Conway, J.), without a jury. Defendant contends that the trial court erred in finding defendant liable to plaintiff for the cost of certain repair work done by plaintiff on three different types of heat exchangers, which plaintiff had previously installed at the State University of New York at Stony Brook. The third-party defendant maintains that the trial court erred in imposing liability over against it on defendant’s third-party claim. We find ample evidence in the record to support the trial court’s findings and, therefore, affirm the judgment. Pursuant to a contract with defendant, entered into in the fall of 1973, plaintiff agreed to install a high temperature hot water distribution system at the Stony Brook campus. The third-party defendant (engineer), primarily a firm of mechanical engineers, was engaged by plaintiff to provide the professional services necessary to complete the design and construction of the project. The system required three types of heat exchangers, which used high temperature hot water produced by a centralized boiler, to generate steam, hot water for heating purposes and hot water for domestic needs. The engineer’s design manual originally specified that the heat exchangers be manufactured by Aereo or an approved equivalent, but at defendant’s request, two other manufacturers were specified as acceptable, including Taylor, from which plaintiff ultimately obtained the equipment. After plaintiff accepted Taylor’s bid on the heat exchangers, Taylor submitted shop drawings of the equipment, which the engineer disapproved, and revised shop drawings were thereafter submitted and approved by the engineer. Plaintiff installed the sealed units as they were delivered to the job site by Taylor. Defendant accepted the completed work in January, 1976, and shortly thereafter directed plaintiff to repair all of the Taylor units, a substantial number of which had developed leaks. Plaintiff did so and commenced the instant action when defendant refused to pay for the repairs. Defendant impleaded the engineer. Based upon the testimony of [861]*861plaintiff’s expert, the trial court found that the sole proximate cause of the leaks in the Taylor units was the use of “non-compatible metals” for the internal parts. Plaintiff’s expert explained that the use of unprotected dissimilar metals resulted in a galvanic corrosion mechanism that virtually guaranteed leakage. He further opined that the selection of such materials was “a design failure” and was “strongly in violation of good practice”. Contrary to defendant’s argument, the trial court’s conclusion which relieved plaintiff of any responsibility for the leakage was not against the weight of the evidence. As noted above, the manufacturer with which plaintiff dealt was one of those specifically approved by the engineer, and the manufacturer’s shop drawings were ultimately approved by the engineer. When delivered to the job site, the units were sealed, and there is evidence in the record that the manufacturer’s warranty

* would have been voided if the sealed units had been opened. In any event, there is no evidence that a general contractor, engaged to install such equipment, could or should have discovered that a corrosion problem was inevitable merely by inspecting the internal parts. Indeed, the record shows that the galvanic corrosion mechanism was a design defect, which was outside plaintiff’s contractual responsibility and expertise. Nor is there any evidence that plaintiff damaged the units during installation or otherwise improperly installed them. Based upon all the evidence in the record, the trial court could reasonably find that plaintiff constructed the system in accordance with the design provided by the engineer, as required by its contract with defendant, and that plaintiff installed the equipment specified in the design. Under such circumstances, the trial court could also reasonably find that plaintiff was not liable to defendant when the system failed to work properly (see MacKnight Flintic Stone Co. v Mayor of City ofN. Y., 160 NY 72). Defendant also contends on this appeal that plaintiff was required to make the disputed repairs at its own expense pursuant to a contractual guarantee, but this claim was not pleaded in the answer as an affirmative defense and, therefore, was waived (CPLR 3018, subd [b]; see De Lisa v Arnica Mut. Ins. Co., 59 AD2d 380, 382, affd 43 NY2d 648). In any event, the contractual guarantee did not apply to design defects. Turning to the engineer’s liability on defendant’s third-party claim, the engineer contends that since its specifications did not provide for the method of connecting the copper-nickel coils with the risers in the heat exchangers, where the leaks occurred, it was the obligation of the manufacturer to select the proper fittings and, therefore, plaintiff, not the engineer, should be responsible for the subcontractor’s failure to perform. The engineer also contends that there is no expert proof showing that it failed to comply with the appropriate standard of competent practice. We find that the proof in the record supports the trial court’s imposition of liability over against the engineer. Testimony in the record establishes that the design and construction of high temperature hot water systems require a high degree of expertise in order to avoid malfunctions and other complications. Defendant engaged the engineer to provide this expertise. In its contract with defendant, the engineer agreed to “provide complete professional services necessary to complete the design and construction of the project”, including the preparation of outline specifications describing the performance criteria and materials of various components and the inspection of contractors’ shop drawings. In view of the testimony of plaintiff’s expert that the use of unprotected dissimilar metals for the internal components of the heat exchangers, which he described as a “design failure” that was “strongly in violation of good practice”, would inevitably cause corrosion problems due to galvanic action, the engineer’s [862]*862failure to specify that dissimilar metals not be used could readily be viewed as a breach of its contractual obligation and a failure to exercise the required degree of skill. More importantly, the engineer ultimately approved the manufacturer’s shop drawings, pursuant to which the heat exchangers were fabricated. While the shop drawings apparently did not reveal the material of the particular components that failed, they did show that dissimilar metals were to be used for other components, and the engineer communicated with the manufacturer concerning internal components before approving the shop drawings. The trial court could reasonably have concluded that in approving a design which led to the introduction of dissimilar metals, the engineer, according to plaintiff’s expert, deviated from good practice. Finally, there was some testimony from the engineer’s own expert concerning the need to inquire into the qualifications of a manufacturer before specifying it for the purposes of establishing a standard of quality. The engineer undertook no such inquiry before acceding to defendant’s suggestion and including Taylor in the design manual. In our view, there is sufficient evidence in the record to support the trial court’s finding of liability over against the third-party defendant engineer. The judgment should be affirmed. Judgment affirmed, with one bill of costs against defendant and third-party defendant. Mahoney, P. J., Casey and Weiss, JJ., concur.

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Appeals from a judgment of the Supreme Court in favor of plaintiff, entered February 28,1983 in Albany County, upon a decision of the court at Trial Term (Conway, J.), without a jury. Defendant contends that the trial court erred in finding defendant liable to plaintiff for the cost of certain repair work done by plaintiff on three different types of heat exchangers, which plaintiff had previously installed at the State University of New York at Stony Brook. The third-party defendant maintains that the trial court erred in imposing liability over against it on defendant’s third-party claim. We find ample evidence in the record to support the trial court’s findings and, therefore, affirm the judgment. Pursuant to a contract with defendant, entered into in the fall of 1973, plaintiff agreed to install a high temperature hot water distribution system at the Stony Brook campus. The third-party defendant (engineer), primarily a firm of mechanical engineers, was engaged by plaintiff to provide the professional services necessary to complete the design and construction of the project. The system required three types of heat exchangers, which used high temperature hot water produced by a centralized boiler, to generate steam, hot water for heating purposes and hot water for domestic needs. The engineer’s design manual originally specified that the heat exchangers be manufactured by Aereo or an approved equivalent, but at defendant’s request, two other manufacturers were specified as acceptable, including Taylor, from which plaintiff ultimately obtained the equipment. After plaintiff accepted Taylor’s bid on the heat exchangers, Taylor submitted shop drawings of the equipment, which the engineer disapproved, and revised shop drawings were thereafter submitted and approved by the engineer. Plaintiff installed the sealed units as they were delivered to the job site by Taylor. Defendant accepted the completed work in January, 1976, and shortly thereafter directed plaintiff to repair all of the Taylor units, a substantial number of which had developed leaks. Plaintiff did so and commenced the instant action when defendant refused to pay for the repairs. Defendant impleaded the engineer. Based upon the testimony of [861]*861plaintiff’s expert, the trial court found that the sole proximate cause of the leaks in the Taylor units was the use of “non-compatible metals” for the internal parts. Plaintiff’s expert explained that the use of unprotected dissimilar metals resulted in a galvanic corrosion mechanism that virtually guaranteed leakage. He further opined that the selection of such materials was “a design failure” and was “strongly in violation of good practice”. Contrary to defendant’s argument, the trial court’s conclusion which relieved plaintiff of any responsibility for the leakage was not against the weight of the evidence. As noted above, the manufacturer with which plaintiff dealt was one of those specifically approved by the engineer, and the manufacturer’s shop drawings were ultimately approved by the engineer. When delivered to the job site, the units were sealed, and there is evidence in the record that the manufacturer’s warranty

* would have been voided if the sealed units had been opened. In any event, there is no evidence that a general contractor, engaged to install such equipment, could or should have discovered that a corrosion problem was inevitable merely by inspecting the internal parts. Indeed, the record shows that the galvanic corrosion mechanism was a design defect, which was outside plaintiff’s contractual responsibility and expertise. Nor is there any evidence that plaintiff damaged the units during installation or otherwise improperly installed them. Based upon all the evidence in the record, the trial court could reasonably find that plaintiff constructed the system in accordance with the design provided by the engineer, as required by its contract with defendant, and that plaintiff installed the equipment specified in the design. Under such circumstances, the trial court could also reasonably find that plaintiff was not liable to defendant when the system failed to work properly (see MacKnight Flintic Stone Co. v Mayor of City ofN. Y., 160 NY 72). Defendant also contends on this appeal that plaintiff was required to make the disputed repairs at its own expense pursuant to a contractual guarantee, but this claim was not pleaded in the answer as an affirmative defense and, therefore, was waived (CPLR 3018, subd [b]; see De Lisa v Arnica Mut. Ins. Co., 59 AD2d 380, 382, affd 43 NY2d 648). In any event, the contractual guarantee did not apply to design defects. Turning to the engineer’s liability on defendant’s third-party claim, the engineer contends that since its specifications did not provide for the method of connecting the copper-nickel coils with the risers in the heat exchangers, where the leaks occurred, it was the obligation of the manufacturer to select the proper fittings and, therefore, plaintiff, not the engineer, should be responsible for the subcontractor’s failure to perform. The engineer also contends that there is no expert proof showing that it failed to comply with the appropriate standard of competent practice. We find that the proof in the record supports the trial court’s imposition of liability over against the engineer. Testimony in the record establishes that the design and construction of high temperature hot water systems require a high degree of expertise in order to avoid malfunctions and other complications. Defendant engaged the engineer to provide this expertise. In its contract with defendant, the engineer agreed to “provide complete professional services necessary to complete the design and construction of the project”, including the preparation of outline specifications describing the performance criteria and materials of various components and the inspection of contractors’ shop drawings. In view of the testimony of plaintiff’s expert that the use of unprotected dissimilar metals for the internal components of the heat exchangers, which he described as a “design failure” that was “strongly in violation of good practice”, would inevitably cause corrosion problems due to galvanic action, the engineer’s [862]*862failure to specify that dissimilar metals not be used could readily be viewed as a breach of its contractual obligation and a failure to exercise the required degree of skill. More importantly, the engineer ultimately approved the manufacturer’s shop drawings, pursuant to which the heat exchangers were fabricated. While the shop drawings apparently did not reveal the material of the particular components that failed, they did show that dissimilar metals were to be used for other components, and the engineer communicated with the manufacturer concerning internal components before approving the shop drawings. The trial court could reasonably have concluded that in approving a design which led to the introduction of dissimilar metals, the engineer, according to plaintiff’s expert, deviated from good practice. Finally, there was some testimony from the engineer’s own expert concerning the need to inquire into the qualifications of a manufacturer before specifying it for the purposes of establishing a standard of quality. The engineer undertook no such inquiry before acceding to defendant’s suggestion and including Taylor in the design manual. In our view, there is sufficient evidence in the record to support the trial court’s finding of liability over against the third-party defendant engineer. The judgment should be affirmed. Judgment affirmed, with one bill of costs against defendant and third-party defendant. Mahoney, P. J., Casey and Weiss, JJ., concur.

The manufacturer, Taylor, was impleaded as a fourth-party defendant by the engineer, which obtained a judgment by default on its fourth-party complaint. Taylor apparently went out of business shortly after the Stony Brook project was completed.

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99 A.D.2d 859, 472 N.Y.S.2d 779, 1984 N.Y. App. Div. LEXIS 17273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-sharpe-nyappdiv-1984.

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