Bd. of Educ. of the Farmingdale Union Free Sch. Dist. v. Grillo

• Decision Date: 20 June 2012
• Docket Number: No. 002947/06.,002947/06.
• Citation: 36 Misc.3d 1221,2012 N.Y. Slip Op. 51416,959 N.Y.S.2d 87
• Parties: BOARD OF EDUCATION OF the FARMINGDALE UNION FREE SCHOOL DISTRICT, Plaintiff, v. John A. GRILLO, Architect, P.C., John A. Grillo, Individually, Christopher Hunt, Greyhawk North America, L.L.C., Irwin Contracting, Inc., John C. Irwin, Individually and Kirco Industries, Corp., Defendants.
• Court: New York Supreme Court

36 Misc.3d 1221

959 N.Y.S.2d 87

2012 N.Y. Slip Op. 51416

BOARD OF EDUCATION OF the FARMINGDALE UNION FREE SCHOOL DISTRICT, Plaintiff,

v.John A. GRILLO, Architect, P.C., John A. Grillo, Individually, Christopher Hunt, Greyhawk North America, L.L.C., Irwin Contracting, Inc., John C. Irwin, Individually and Kirco Industries, Corp., Defendants.

No. 002947/06.

Supreme Court, Nassau County, New York.

June 20, 2012.

OPINION TEXT STARTS HERESTEPHEN A. BUCARIA, J.

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                ¦The following papers read on this motion:¦   ¦
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                ¦Notice of Motion                         ¦XX ¦
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                ¦Affirmation in Opposition                ¦X  ¦
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                ¦Affidavit in Support                     ¦X  ¦
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                ¦Reply Affidavit                          ¦X  ¦
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                ¦Memorandum of Law                        ¦XXX¦
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                ¦Reply Memorandum of Law                  ¦XX ¦
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Motion by defendants John A. Grillo, Architect, P.C., John A. Grillo, Individually, and Christopher Hunt (collectively referred to herein as the “Grillo Defendants”) [Mot. Seq. 007] for partial summary judgment dismissing plaintiff Board of Education of the Farmingdale Union Free School District's causes of action for fraud, breach of contract, punitive damages, res ipsa loquitur, and negligence is granted in part and denied in part.

Motion by defendants Irwin Contracting, Inc. and John C. Irwin, Individually (collectively referred to herein as the “Irwin Defendants”) [Mot. Seq. 008] for partial summary judgment dismissing plaintiff Board of Education of the Farmingdale Union Free School District's (hereinafter referred to as the “School District”) seventh, eighth, eleventh, twelfth and thirteenth causes of action is granted in part and denied in part.

This action stems from the alleged improper construction of new additions at the W.E. Howitt Middle School (“Howitt”) located in Farmingdale, New York. Specifically, the Howitt construction project consisted of a two story L-shaped classroom addition (“sixth grade wing”) and a one story music addition, both with masonry exterior cavity walls and flat roofs.

On or about July 1, 1999, plaintiff entered into a written contract with the Grillo Defendants to provide architectural services to the plaintiff, including but not limited to, the preparation of designs, plans and specifications for the construction at Howitt. Subsequently, in June 2000, plaintiff entered into a written contract with defendant Greyhawk North America, LLC (“Greyhawk”) to act as the Construction Manager for the School District. After conducting the required competitive bidding, in September 2001, plaintiff awarded the contract for the construction of the Howitt project to the Irwin Defendants as the General Contractor. Thereafter, in or about October 2001, defendant Kirco Industries, Corp. (“Kirco”) was retained by the Irwin Defendants to act as the masonry subcontractor responsible for the construction of the interior walls and exterior cavity walls at Howitt.

Construction at Howitt began in or about November 2001 and ended in or about July 2003.

However, during construction, and after a rain event in October 2002, problems arose with the walls of the sixth grade wing; specifically, the walls thereat were noticed to be continuously moist. While plaintiff claims that the Grillo Defendants and the Irwin Defendants became aware of water infiltration to several areas of the newly constructed sixth grade wing including the north and east facing walls, Christopher Hunt, the project architect for the Howitt project, states that the problem was only limited to the north wall. Hunt states that the Grillo Defendants and the Irwin Defendants blamed each other for the problem and that the conflicting opinion between the Grillo Defendants and the Irwin Defendants as to responsibility was never resolved. Defendants submit that despite several tests and probes into the moist walls, the cause of the moisture was never determined and the probes were all inconclusive.

Nonetheless, at some point following the tests and probes, it was proposed, and ultimately approved, that a sealant be placed on the north wall. The cost of the sealant was paid from the project allowances and with plaintiff, School District's approval. The sealant was applied to the north wall of the sixth grade wing in the late spring of 2003. In October 2005 however, after another heavy rainstorm, the classrooms on the sixth floor wing again leaked from the north side and the east side.

In bringing this action against the architects (the Grillo Defendants), the general contractor (the Irwin Defendants), the construction manager (Greyhawk) and the masonry subcontractor (Kirco), plaintiff claims that the cause of such water infiltration is a combination of architectural design defects and construction defects by all named parties.

Plaintiff asserts 13 causes of action in its complaint, as follows: (1) against Grillo Defendants for negligence; (2) against Grillo Defendants for breach of contract; (3) against John A. Grillo, Architect P.C. and John A. Grillo, individually, for negligence as a School District Architect; (4) against John A. Grillo, Architect P.C. and John A. Grillo, individually, for breach of contract as School District Architect; (5) against defendant Greyhawk for negligence; (6) against defendant Greyhawk for breach of contract; (7) against the Irwin Defendants for negligence; (8) against the Irwin Defendants for breach of contract; (9) against Kirco for negligence; (10) against Kirco for breach of contract; (11) against all defendants for res ipsa loquitur and negligence per se; (12) against all defendants for fraudulent concealment and misrepresentation; and (13) against all defendants for punitive damages.

Upon the instant motions, the Grillo Defendants and the Irwin Defendants both seek summary judgment dismissal of the claims asserted against them.

Specifically, in support of their motion, the Grillo Defendants assert five bases for their entitlement to summary judgment.

First, plaintiff's claims for fraud based upon the application of the sealant and the use of allowances must be dismissed because the fraud allegations sound in contract and malpractice and plaintiff has failed to present clear and convincing evidence that would establish a misrepresentation of a material fact, falsity, scienter or reliance. Second, plaintiff's cause of action for breach of contract based upon the use of allowances to pay for certain work must be dismissed because said practice was part of the course of conduct acknowledged and approved by the plaintiff's employees. Third, the record is devoid of evidence that support an award of punitive damages and said damages may not be awarded in actions for breach of contract. Fourth, plaintiff's damages must be limited by the economic loss doctrine such that the plaintiff must be prohibited from recovering for costs to tear down and replace walls that are not leaking. Lastly, New York law does not recognize an independent cause of action for res ipsa loquitur or punitive damages.

Similarly, the Irwin Defendants assert four bases for their entitlement to summary judgment.

First, John Irwin, the President of Irwin Contracting Inc., is not a party to any contract with the School District and he does not owe any contractual or legal obligations to the plaintiff. Second, the Irwin Defendants substantially completed their work in accordance with the contract documents and are not responsible for any damage or defects that may exist in the exterior walls of the project.

Third, the fraud claim is factually and legally insufficient as a matter of law because: they seek solely to enforce the separate contractual obligations of the Grillo Defendants, Greyhawk and the Irwin Defendants and do not support or give rise to a cause of action for fraud; the School District did not rely on the Irwin Defendants to prepare the contract plans and specifications for the Howitt Project or to determine whether the contract work was performed and completed in accordance with the contract plans, specifications and contract documents; and any allegations that the Irwin Defendants did not fully disclose its concerns about the wet north wall condition that occurred in late 2002 and that the Irwin Defendants knew or should have known that the application of the water repellant product on the north wall would not remediate water infiltration at that location are refuted by the evidence which establishes that Edward Cullen, as the Director of Facilities for the plaintiff School District who was responsible for, inter alia, attending project meetings and reviewing payment applications after architect and construction manager approval, participated in ongoing discussions and meetings concerning the wet north wall as well as the extensive tests, inspections and examinations of the north wall. Defendants argue that the fraud claim also fails because the application of the silicone product fully remediated the north wall.

Lastly, the Irwin Defendants maintain that there is no basis on which to predicate a claim for punitive damages.

Notably, in support of their motion for summary judgment, the Grillo Defendants rely upon the affidavit of their expert, Mark Ellis, R.A., a licensed architect, who states, in pertinent part, as follows:

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4. For the reasons set forth below, based upon good and accepted architectural and investigative principles and practices, there is no evidentiary or investigative basis to conclude that the brick wall along the west side of sixth grade wing at Howitt is not preventing water penetration or is not draining as intended. Therefore, there is no basis...