Mkcac, LLC v. Cnty. of Oneida
| Decision Date | 05 March 2015 |
| Docket Number | No. CA2011–002187.,CA2011–002187. |
| Citation | 54 N.Y.S.3d 611 (Table) |
| Parties | MKCAC, LLC, Michael Caccavale and Karin Caccavale, Plaintiffs, v. COUNTY OF ONEIDA, Tony Baker a/k/a Anthony Baker, Shumaker Consulting, Engineering and Land Surveying, PC, and Hogan Engineering, PC, Defendants. |
| Court | New York Supreme Court |
Michelle E. Broadbent, Esq., Kowalczyk, Deery & Broadbent, LLP, Utica, on behalf of the plaintiffs.
Mark Chieco, Esq., Petrone & Petrone, PC, Utica, on behalf of Defendant, County of Oneida.
Julie Grow Denton, Esq., McMahon and Grow, Rome, on behalf of Defendant, Tony Baker.
Michael Damia, Esq., Harter Seacrest & Emery LLP, Rochester, on behalf of Defendant, Shumaker Consulting, Engineering and Land Surveying, PC.
Rocco Versace, Esq., Rome, on behalf of Defendant, Hogan Engineering, PC.
Papers Submitted
Plaintiff's Motion for Summary Judgment with supporting exhibits
Affirmations of Plaintiff's Attorney in Support of Motion
Plaintiff's Memorandum of Law in Support of Motion
County of Oneida Notice of Cross Motion and Opposition to plaintiff's Mtn
County of Oneida Memorandum of Law
Affirmation of Mark Chieco, Esq on behalf of County
Attorney Affirmation of Michael Damia, Esq. on behalf of Shumaker Consulting
Memorandum of Law on behalf of Shumaker Consulting
Answering Affidavit of Motion for Summary Judgment by Hogan Engineering
The plaintiff, MKCAC, LLC (hereinafter referred to as "MKCAC") is the owner of Kayuta Lake Campgrounds in Forestport, New York. Plaintiffs contracted with Defendant Hogan Engineering, PC (hereinafter referred to as "Hogan") to draft plans for the design of an outdoor in-ground swimming pool. Hogan is a licensed domestic corporation providing professional civil and structural engineering services in the County of Oneida and State of New York. MKCAC contracted with Defendant Tony Baker (hereinafter referred to as "Baker") to construct the pool (hereinafter referred to as "the Project"). Defendant Baker operates a pool installation business in Rome, New York. The original plans for the Project were drawn by Hogan and were submitted to the Defendant, County of Oneida (hereinafter referred to as the "County") for review and approval. The County contracted with Defendant Shumaker Consulting Engineering & Land Surveying, P.C. (hereinafter referred to as "Shumaker") to review and approve all plans submitted to the County to determine that they were in compliance with all relevant statutes and regulations.
On or about the Spring of 2009, MKCAC retained Defendant Hogan for the sum of $1,250.00 (twelve hundred and fifty dollars) to design and supervise construction of the Project, and to ensure compliance with all relevant codes, laws and regulations. In June of 2009, MKCAC entered into an agreement with Defendant Baker for the sum of $57,805.00 (fifty seven thousand, eight hundred and five dollars) to "furnish all materials and perform all labor necessary for the completion of an in-ground swimming pool 16 x 40 x 24L shaped 8' steps, all filtration, cleaning, sanitation equipment to be installed in accordance with Health Department and Engineer specifications."
On or about August 27, 2009, Defendant Shumaker issued a letter to Defendant County which acknowledged review of the Project plans and determined that the plans met all applicable regulations and recommended that the County issue approval. On August 27, 2009, the County issued a Certificate of Approval of plans (hereinafter referred to as the "Initial Approval") to the plaintiffs and an email to the plaintiffs informing them that "construction can commence based on the version of the plans that [Shumaker] is recommending for approval." (See, Email from Sean Clive, Principal Public Health Sanitarian, Oneida County Health Department, dated August 27, 2009).
MKCAC commenced construction of the pool in the Fall of 2009 pursuant to the approved plans. On May 24, 2010, the County conducted an inspection of the pool at which time a problem with the bottom stripe on the pool floor was revealed. Other issues were also noted. The County began discussions with the New York State Department of Health and learned that the pool was not in compliance with NYS Sanitary Code, Subpart 6–1, and serious or potentially dangerous conditions existed, namely related to the slope of the pool, the slippery liner, lack of breakpoint markings and other non-conforming items. By letter dated June 18, 2010, Defendant County subsequently rescinded the Initial Approval of the pool plans.
MKCAC claims that after the Initial Approval was rescinded, it was compelled to excavate the first pool and install a second pool. MKCAC seeks reimbursement from the defendants for, to wit, the cost of replacing the pool and lost revenue. MKCAC claims that they have been damaged by the defendants in the sum of $250,000 for the defendants' failure to properly design, construct and supervise the Project. MKCAC claims that Defendants Hogan and Baker breached their respective contracts with the MKCAC and that Defendants Hogan, Baker, Shumaker and the County were negligent in their involvement with the Project.
Specifically, MKCAC claims that Defendant Hogan: 1) breached its agreement with MKCAC by failing to, in compliance with all pertinent codes, laws, rules and/or regulations: a) develop plans and specifications; and b) supervise the work relative to the Project; and that Defendant Hogan 2) was negligent in performing under its agreement with the MKCAC.
MKCAC further claims that Defendant Baker 1) breached his contract with MKCAC in that he sold, installed, supervised and/or otherwise made provision for an in-ground outdoor swimming pool that was not in accordance with the Health Department and engineer specifications and/or was not fit for the commercial or other purposes for which its use was intended and made known to Defendant Baker; and 2) was negligent in failing to user the care and skill in the selection of the swimming pool and other accommodations and/or provision and failed to properly and sufficiently supervise the construction and installation of the same.
MKCAC claims that Defendant Shumaker engaged in professional negligence and/or malpractice. MKCAC also alleges that Shumaker is liable to MKCAC as a third party beneficiary of the contract with Defendant Oneida County.
Finally, MKCAC claims that Defendant Oneida County was negligent in reviewing and approving MKCAC's plans for the pool project and ensuring compliance with applicable rules and regulations in accordance with the New York State Sanitary Code, Public Health Law and Oneida County Health Department.
MKCAC moves for summary judgment on the grounds that there are no genuine issues of material fact to be determined in connection with this action and that the plaintiff's causes of action have been established sufficiently against each defendant to warrant the Court, as a matter of law, to direct judgment in the plaintiff's favor.
Defendant County of Oneida opposes MKCAC's motion and cross-moves to amend its answer to assert affirmative defenses and deem its answer served. The County also seeks an order granting summary judgment and dismissal of all of the plaintiff's claims against the County.
Defendant Shumaker opposes the plaintiff's motion for summary judgment and cross-moves for summary judgment seeking an order dismissing the plaintiff's complaint and the cross-claims of Defendants Baker and Hogan.
Defendant Baker also opposes the plaintiff's motion for summary judgment. Defendant Hogan opposes the plaintiff's motion for summary judgment but does not oppose the cross-motion of Defendant Shumaker or Defendant County. MKCAC opposes all cross-motions.
In considering all motions and cross-motions, the Court has reviewed the pleadings, the motion papers submitted by the parties, including depositions of witnesses, affidavits, affirmations of counsel, and memoranda of law, and has considered the oral arguments of counsel.
New York Civil Procedure Law and Rules (hereinafter referred to as " CPLR") § 3025(b) provides, in pertinent part: "Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit." Holst v. Liberatore, 105 AD3d 1374, 1374 (4th Dept., 2013), citing McFarland v. Michel, 2 AD3d 1297, 1300 (4th Dept., 2003). See also Anderson v. Nottingham Vil. Homeowner's Assn., Inc., 37 AD3d 1195, 1198 (4th Dept., 2007). "The decision to allow or disallow the amendment is committed to the court's discretion." Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959 (1983). Further, when the original complaint provides the necessary evidentiary support for the motion, there is additional bases for allowing the amendment. McFarland, supra; see also Dever v. DeVito, 84 AD3d 1539, 1541 (3rd Dept., 2011), lv. dismissed 18 NY3d 864. ...
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