492 Kings Realty, LLC v. 506 Kings, LLC

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: WILLIAM F. MASTRO
• Citation: 492 Kings Realty, LLC v. 506 Kings, LLC, 105 A.D.3d 991, 964 N.Y.S.2d 215, 2013 N.Y. Slip Op. 2710 (N.Y. App. Div. 2013)
• Decision Date: 24 April 2013
• Parties: 492 KINGS REALTY, LLC, et al., plaintiffs-respondents, v. 506 KINGS, LLC, et al., defendants-respondents, Ismael Leyva Architects, P.C., et al., appellants. (Action No. 1) 506 Kings, LLC, plaintiff, v. Metrotech Construction of New York Corp., et al., defendants. (Action No. 2) Nissim Khalifeh, plaintiff, v. 506 Kings, LLC, et al., defendants, Concrete Structures, Inc., defendant-respondent, Soil Solutions, Inc., appellant. (Action No. 3) 492 Kings Realty, LLC, et al., plaintiffs, v. 506 Kings, LLC, et al., defendants. (Action No. 4)

105 A.D.3d 991

964 N.Y.S.2d 215

2013 N.Y. Slip Op. 02710

492 KINGS REALTY, LLC, et al., plaintiffs-respondents,

v.506 KINGS, LLC, et al., defendants-respondents,Ismael Leyva Architects, P.C., et al., appellants. (Action No. 1)

506 Kings, LLC, plaintiff,

v.Metrotech Construction of New York Corp., et al., defendants. (Action No. 2)

Nissim Khalifeh, plaintiff,

v.506 Kings, LLC, et al., defendants,Concrete Structures, Inc., defendant-respondent,

Soil Solutions, Inc., appellant. (Action No. 3)

492 Kings Realty, LLC, et al., plaintiffs,

v.506 Kings, LLC, et al., defendants. (Action No. 4)

Supreme Court, Appellate Division, Second Department, New York.

April 24, 2013.

Milber Makris Plousadis & Seiden, White Plains, N.Y. (David C. Zegarelli of counsel), for appellant Ismael Leyva Architects, P.C.

Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Glenn J. Fuerth and Judy C. Selmeci of counsel), for appellant Domani Consulting, Inc.

L'Abbate Balkan Colavita & Contini, Garden City, N.Y. (Keith J. Stevens of counsel), for appellant Goldstein Associates, Inc.

Edward Garfinkel (McGaw, Alventosa & Zajac, Jericho, N.Y. [Joseph Horowitz], of counsel), for appellant Soil Solutions, Inc.

Charles J. Siegel, New York, N.Y. (Peter Edward Vairo of counsel), for appellant Midtown Equities, LLC.

Ressler & Ressler, New York, N.Y. (Bruce J. Ressler and Ellen R. Werther of counsel), for plaintiffs-respondents.

Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Kevin G. Faley of counsel), for defendant-respondent SDG Engineering, Inc.

O'Connor Redd LLP, White Plains, N.Y. (Peter Urreta of counsel), for defendant-respondent Concrete Structures, Inc.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, THOMAS A. DICKERSON, and PLUMMER E. LOTT, JJ.

In four related actions, inter alia, to recover damages for injury to property, Ismael Leyva Architects, P.C., Domani Consulting, Inc., Goldstein Associates, Inc., and Midtown Equities, LLC, defendants in Action Nos. 1 and 4, separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated June 2, 2011, as denied those branches of their respective motions which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them in Action No. 1, and Soil Solutions, Inc., a defendant in Action Nos. 1 and 3, separately appeals, as limited by its brief, from so much of the same order as granted the motion of Concrete Structures, Inc., a defendant in Action Nos. 1 and 3, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it in Action Nos. 1 and 3.

ORDERED that the appeal by Soil Solutions, Inc., from so much of the order as granted those branches of the motion of Concrete Structures, Inc., which were for summary judgment dismissing the complaint and the cross claims of 506 Kings, LLC, Midtown Equities, LLC, Ismael Leyva Architects, P.C., Goldstein Associates, Inc., SDG Engineering, Inc., Domani Consulting, Inc., and Metrotech of New York Corp. insofar asserted against it in Action No. 1 and for summary judgment dismissing the complaint and the cross claim of 506 Kings, LLC, insofar as asserted against it in Action No. 3, is dismissed, as Soil Solutions, Inc., is not aggrieved by those portions of the order ( seeCPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132); and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the respective motions of the defendants Ismael Leyva Architects, P.C., Domani Consulting, Inc., and Goldstein Associates, Inc., which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against them in Action No. 1, and substituting therefore a provision granting those branches of the respective motions; as so modified, the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the appellants Ismael Leyva Architects, P.C., and Goldstein Associates, Inc., payable by the respondents 492 Kings Realty, LLC, Kosher Corner Supermarkets, and SDG Engineering, Inc., appearing separately and filing separate briefs, one bill of costs is awarded to the appellant Domani Consulting, Inc., payable by the respondents 492 Kings Realty, LLC, and Kosher Corner Supermarkets, one bill of costs is awarded to the respondent Concrete Structures, Inc., payable by the appellant Soil Solutions, Inc., and one bill of costs is awarded to the respondents 492 Kings Realty, LLC, Kosher Corner Supermarkets, and SDG Engineering, Inc., appearing separately and filing separate briefs, payable by the appellant Midtown Equities, LLC.

The building on Kings Highway in Brooklyn that is the subject of these actions is owned by 492 Kings Realty, LLC (hereinafter 492 Kings), and leased to Kosher Corner Supermarket, Inc. (hereinafter Kosher Corner). In or about 2006, adjoining property owner 506 Kings, LLC (hereinafter 506 Kings), in preparation for the construction of a building on its property, hired the defendant SDG Engineering, Inc. (hereinafter SDG), to design the underpinning and shoring intended to protect the surrounding properties, and hired the defendant Metrotech of New York Corp. (hereinafter Metrotech) to perform the underpinning work. In September 2006, the building owned by 492 Kings partially collapsed.

In an investigative report, SDG's principal, Stuart D. Gold, P.E., stated that the underpinning plans had called for 24–inch thick underpins, and that an examination of the unearthed underpins disclosed that they ranged in thickness from 16 to 24 inches. Gold further stated that torrential rains had occurred on the day of the collapse. Gold's report concluded that the mode of failure was sliding due to a combination of soil liquefaction and underpin thickness smaller than 24 inches.

Four actions arose out of the collapse. Kosher Corner and 492 Kings (hereinafter together the plaintiffs) commenced Action No. 1, inter alia, to recover for damage to property against 506 Kings, SDG, Metrotech, Midtown Equities, LLC (hereinafter Midtown), the alleged project manager for the construction project, Ismael Leyva Architects, P.C. (hereinafter ILA), the architect for the new building, Goldstein Associates, Inc. (hereinafter Goldstein), the structural engineer for the new building, Domani Consulting, Inc. (hereinafter Domani), a contractor hired to, among other things, monitor concrete strength, Soil Solutions, Inc. (hereinafter SSI), an excavator, and Concrete Structures, Inc. (hereinafter CSI), a concrete contractor. Nissim Khalifeh, an employee of Kosher Corner, commenced Action No. 3 against 506 Kings, CSI, SSI, and others to recover damages for personal injuries he allegedly sustained as a result of the collapse. Action Nos. 2 and 4 are not at issue on this appeal.

The Supreme Court should have granted those branches of the respective motions of ILA and Goldstein which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against them in Action No. 1. “ ‘[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party’ ” ( Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257, 848 N.Y.S.2d 585, 878 N.E.2d 1001, quoting Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485;see Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50)....