Columbus v. Smith & Mahoney P.C.

• Decision Date: 11 March 1999
• Citation: 686 N.Y.S.2d 235
• Parties: 1999 N.Y. Slip Op. 2171 Robert COLUMBUS et al., Respondents, v. SMITH & MAHONEY P.C., Appellant, et al., Defendant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 235

686 N.Y.S.2d 235

1999 N.Y. Slip Op. 2171

Robert COLUMBUS et al., Respondents, v. SMITH & MAHONEY P.C., Appellant, et al., Defendant (And a Third-Party Action.)

Supreme Court, Appellate Division,

Third Department.

March 11, 1999.

Waite & Associates P.C. (Stephen J. Waite of counsel), Albany, for appellant.

Rosenblum, Ronan, Kessler & Sarachan LLP (George L. Sarachan of counsel), Albany, for respondents.

Before: CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ.

CARDONA, P.J.

Appeals (1) from a judgment of the Supreme Court (Canfield, J.), entered February 6, 1998 in Albany County, upon a verdict rendered in favor of plaintiffs, and (2) from an order of said court, entered March 10, 1998 in Albany County, which denied a motion by defendant Smith & Mahoney P.C. to set aside the verdict.

While employed by the City of Albany, plaintiff Robert Columbus (hereinafter plaintiff) was injured when he fell approximately 12 feet from the top of a salt spreader which weighed approximately 2,100 pounds. The accident occurred when plaintiff was attempting to store the spreader on wooden hangers suspended from the ceiling of the City garage. The storage system, which was designed by defendant Smith & Mahoney P.C. (hereinafter Smith) and constructed by defendant D.J. Contractors (hereinafter D.J.), consisted of cables attached to steel plates which were bolted to wooden 2 X 8s supported by metal braces affixed to the ceiling. The spreader was hoisted by come-alongs and the cables were attached to each of its four corners. The accident occurred when one of the 2 X 8s fractured along the grain of a large knot causing that part of the board supporting the metal plate and cable to give way.

Plaintiff and his wife commenced this action against Smith and D.J. alleging negligent design and construction of the storage system. D.J., in turn, commenced a third-party action against the City. Following the close of plaintiffs' proof, Smith moved for a directed verdict. Supreme Court denied the motion and the jury rendered a verdict in favor of plaintiffs apportioning 45% of the liability to Smith and 55% to D.J. Plaintiff was awarded judgment in the amount of $316,675.96 and his wife $15,000 on her derivative claim. Smith's posttrial motion to set aside the verdict was denied resulting in this appeal.

Smith contends that plaintiffs failed to adduce proof establishing a prima facie case of negligence and/or malpractice in the design of the storage system and, therefore, Supreme Court erred in denying its motions for a directed verdict and an order setting aside the verdict. Based upon our review of the record, we agree. It is well settled that in order to prove negligence or malpractice in the design of a structure, the plaintiff must put forth expert testimony that the engineer or architect deviated from accepted industry standards (see, Interstate Cigar Co. v. Dynaire Corp., 176 A.D.2d 699, 699-700, 574 N.Y.S.2d 789; John Grace & Co. v. State Univ. Constr. Fund, 99 A.D.2d 860, 862, 472 N.Y.S.2d 757 [Levine, J., dissenting in part and concurring in part], mod. on dissenting /concurring mem. below 64 N.Y.2d 709, 485 N.Y.S.2d 734, 475 N.E.2d 105; see also, 530 E. 89 Corp. v. Unger, 43 N.Y.2d 776, 777, 402 N.Y.S.2d 382, 373 N.E.2d 276). In the instant case, plaintiffs assert that Smith was negligent in specifying number two grade lumber in the design of the wooden members of the storage system because the lumber was not satisfactory due to the presence of knots that weakened its structural integrity. It is important to note, however, that no evidence was adduced at trial that the use of this grade of lumber for the purpose intended violated generally accepted industry standards or the State Building Code (hereinafter the Building Code).

Paul Montgomery, a structural engineer produced by Smith as an expert, testified that number two grade lumber of the type specified by Smith was the most common type of wood used in the construction industry and was acceptable for...