Bruno v. Trus Joist a Weyerhaeuser Bus.

• Decision Date: 23 August 2011
• Citation: 87 A.D.3d 670,2011 N.Y. Slip Op. 06335,929 N.Y.S.2d 163
• Parties: Steven BRUNO, et al., plaintiffs-appellants,v.TRUS JOIST A WEYERHAEUSER BUSINESS, etc., defendant,Lakeland Lumber Corporation, defendant-appellant,Joseph F. Galea, etc., respondent (and third-party actions).
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 670

929 N.Y.S.2d 163

2011 N.Y. Slip Op. 06335

Steven BRUNO, et al., plaintiffs-appellants,

v.TRUS JOIST A WEYERHAEUSER BUSINESS, etc., defendant,Lakeland Lumber Corporation, defendant-appellant,Joseph F. Galea, etc., respondent (and third-party actions).

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

Aug. 23, 2011.

Goetz Fitzpatrick, LLP, New York, N.Y. (Timothy B. Cummiskey of counsel), for plaintiffs-appellants.Brand Glick & Brand, P.C., Garden City, N.Y. (Seth D. Cohen of counsel), for defendant-appellant.Francis J. O'Reilly, Mahopac, N.Y., for respondent.MARK C. DILLON, J.P., ARIEL E. BELEN, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for architectural malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County(O'Rourke, J.), dated November 2, 2009, as granted that branch of the motion of the defendantJoseph F. Galea which was for summary judgment dismissing the complaint insofar as asserted against him, and the defendantLakeland Lumber Corporation separately appeals from so much of the same order as granted the motion of the defendantJoseph A. Galea for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

ORDERED that the appeal by the defendantLakeland Lumber Corporation from so much of the order as granted those branches of the motion of the defendantJoseph A. Galea which were for summary judgment dismissing the complaint and the cross claims of the defendant Trus Joist a Weyerhaeuser Business insofar as asserted against him is dismissed, as the defendantLakeland Lumber Corporation is not aggrieved by that portion 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 affirmed insofar as appealed from by the plaintiffs and insofar as reviewed on the appeal by the defendantLakeland Lumber Corporation; and it is further, ORDERED that one bill of costs is awarded to the respondent.

The plaintiffs allege that in May 2000, the plaintiffSteven Bruno, as agent for the plaintiff SDR Design Interiors (hereinafter SDR), entered into an oral agreement with the defendantJoseph F. Galea, pursuant to which Galea agreed to perform architectural and design services for Bruno in connection with the construction of Bruno's residence in Putnam Valley.Pursuant to the oral agreement, Galea prepared stamped architectural plans, which were filed with and approved by the Town of Putnam Valley Building Department(hereinafter the Building Department) on July 25, 2000.Notably, Galea's plan called for the use of 2?–by–12? traditional wood joists, and was based on standard finishes and materials.

Thereafter, the plaintiffs unilaterally decided to use manufactured wood joists, which contain composite wood materials, instead of the wood joists set forth in Galea's architectural plan, and chose the Trus Joist I–Beam system, manufactured by the defendant Trus Joist a Weyerhaeuser Business (hereinafter Trus Joist).Subsequently, SDR, as agent for Bruno, retained the defendantLakeland Lumber Corporation(hereinafter Lakeland) to design, manufacture, and/or supply the framing system for the project.Unbeknownst to the plaintiffs, a company known as Prime Source prepared additional plans for the framing system for Lakeland and/or Trus Joist, which provided for the use of Trus Joist products for the framing.In late September 2001, shortly after the house was completed and Bruno, his companion Sharon D. Robbins, and their family took up residency, cracks developed in the heavy stone flooring and ceramic tile flooring used in much of the first floor.

On or about September 29, 2004, the plaintiffs commenced this action against Trus Joist, Lakeland, and Galea to recover damages for breach of contract, architectural malpractice, breach of express and implied warranties, and negligent misrepresentation.Each of the defendants separately answered, denying the material allegations of the complaint, and asserting cross claims against each other for indemnification.

Ultimately, Galea moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, arguing, inter alia, that he did not depart from accepted standards of architectural practice, and that the services he performed were not the proximate cause of the plaintiffs' alleged damages.The plaintiffs and Lakeland separately opposed the motion.The Supreme Court granted the motion on the ground that “Mr. Galea's drawings were ... altered and completely changed by the plaintiffs.The building constructed was not in accordance with Mr. Galea's original drawings approved by the building department.”In its order, the Supreme Court, relying on a letter from SDR to Galea dated May 18, 2003, and submitted by Galea in support of his motion, concluded that SDR “acknowledges that [the plaintiffs] made unilateral decisions to change the design and structural load bearing by using the engineered joist product in lieu of lumber upon which Mr. Galea prepared his calculations.Plaintiff[s] also used ceramic tiles and stone[,] which increased the weight on all fitting beams which they chose to install.”The plaintiffs and Lakeland separately appeal.We affirm the order insofar as appealed from by the plaintiffs, and insofar as reviewed on Lakeland's appeal.

“A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury”( Kung v. Zheng,73 A.D.3d 862, 863, 901 N.Y.S.2d 334[internal quotation marks omitted];seeEstate of...