11 Essex St. Corp. v. Tower Ins. Co. of N.Y.

• Decision Date: 17 February 2011
• Citation: 917 N.Y.S.2d 164,81 A.D.3d 516
• Parties: 11 ESSEX STREET CORP., Plaintiff, v. TOWER INSURANCE COMPANY OF NEW YORK, Defendant. 11 Essex Street Corp., Plaintiff-Respondent-Respondent, v. 7 Essex Street, L.L.C., etc., Defendant-Respondent, DeSimone Consulting Engineers, et al., Defendants-Appellants, Berzak Gold, P.C., Defendant-Respondent-Appellant, Big Apple Wrecking and Construction Corp., Defendant. [And Other Actions].
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 164 81 A.D.3d 516 11 ESSEX STREET CORP., Plaintiff, v. TOWER INSURANCE COMPANY OF NEW YORK, Defendant. 11 Essex Street Corp., Plaintiff-Respondent-Respondent, v. 7 Essex Street, L.L.C., etc., Defendant-Respondent, DeSimone Consulting Engineers, et al., Defendants-Appellants, Berzak Gold, P.C., Defendant-Respondent-Appellant, Big Apple Wrecking and Construction Corp., Defendant. [And Other Actions]. Supreme Court, Appellate Division, First Department, New York. Feb. 17, 2011.

Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for respondent-appellant.

Zetlin & De Chiara LLP, New York (Michael J. Vardaro of counsel), for DeSimone Consulting Engineers, PLLC, appellant.

Harrington, Ocko & Monk, LLP, White Plains (Michael W. Freudenberg of counsel), for Jeffrey M. Brown Associates, Inc., appellant.

Weg & Myers, P.C., New York (Dennis T. D'Antonio of counsel), for respondent-respondent.

Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for respondent.

TOM, J.P., SAXE, DeGRASSE, FREEDMAN, ROMÁN, JJ.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered September 15, 2009, which, insofar as appealed from, granted plaintiff's motion to amend the complaint to add a cause of action for gross negligence and a demand for punitive damages against defendants Jeffrey M. Brown Associates, Inc., DeSimone Consulting Engineers, and BerzakGold, P.C., and denied DeSimone's motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.

The record shows that Jeffrey M. Brown Associates knew that the building at 7 Essex Street would not tolerate the likely settlement of its foundations and that plaintiff's building had to be underpinned, and yet the record does not permit the conclusion as a matter of law that Brown fulfilled its responsibility to monitor the excavation every day. DeSimone was responsible for performing controlled inspections of the underpinning of plaintiff's building and knew that the building might be damaged during the excavation, and yet the record does not permit the conclusion that DeSimone took all necessary precautions to prevent damage to the building. Berzak Gold's principal knew that plaintiff's building had only a rubble slab footing and yet did not speak to plaintiff or ask to see any construction plans. The record presents issues of fact whether defendants' conduct "evinced a conscious disregard of the rights of...