New Life Holding Corp. v. Turner Constr. Co.

• Decision Date: 03 October 2014
• Docket Number: Index No.: 650993/2011
• Citation: New Life Holding Corp. v. Turner Constr. Co., 2014 NY Slip Op 32590(U), Index No.: 650993/2011 (N.Y. Sup. Ct. Oct 03, 2014)
• Parties: NEW LIFE HOLDING CORPORATION, Plaintiff, v. TURNER CONSTRUCTION COMPANY, BRODSKY ORGANIZATION, LLC, URBAN FOUNDATION/ENGINEERING, LLC, 118 CONSTRUCTION ASSOCIATES, LLC and EAST 118 DEVELOPER, LLC, Defendants. TURNER CONSTRUCTION COMPANY, BRODSKY ORGANIZATION, LLC, URBAN FOUNDATION/ENGINEERING, LLC, Third-Party Plaintiffs, v. LJC DISMANTLING CORP. Third-Party Defendants.
• Court: New York Supreme Court

2014 NY Slip Op 32590(U)

NEW LIFE HOLDING CORPORATION, Plaintiff, v. TURNER CONSTRUCTION COMPANY, BRODSKY ORGANIZATION, LLC,

URBAN FOUNDATION/ENGINEERING, LLC, 118 CONSTRUCTION ASSOCIATES, LLC

and EAST 118 DEVELOPER, LLC, Defendants.

TURNER CONSTRUCTION COMPANY, BRODSKY ORGANIZATION, LLC,URBAN FOUNDATION/ENGINEERING, LLC, Third-Party Plaintiffs, v. LJC DISMANTLING CORP. Third-Party Defendants.

Index No.: 650993/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35

October 3, 2014

Motion Seq. No. 007

HON. CAROL ROBINSON EDMEAD, J.S.C.

MEMORANDUM DECISION

Defendants/third-party plaintiffs Turner Construction Company ("Turner"), Brodsky Organization, LLC, Urban Foundation/Engineering, LLC (the "direct defendants") move for partial summary judgment dismissing the complaint of the plaintiff, New Life Holding Corporation ("plaintiff"), as to (1) damages, including claims of nuisance, (2) claims of trespass,¹(3) claims for lost earnings/rental damages and (4) and claims for economic damages relating to a certain property owned by plaintiff located at 2162 Third Avenue. Third-party defendant LJC Dismantling Corp. ("LJC") joins in this request for dismissal.

In turn, plaintiff cross moves for partial summary judgment against the direct defendants for strict liability pursuant to Administrative Code 3309.4 for damages to its properties located at 2170 and 2172 Third Avenue.

Factual Background²

Plaintiff owns several connected, commercial buildings that run from south to north located at 2162, 2164,³ 2166, 2168, 2170 and 2172 Third Avenue (collectively the "Premises").⁴ The Premises consist of six units that plaintiff rents to commercial businesses; the eastern half of the Premises is four stories in height, and the western half is two. In early 2009, the Premises were fully occupied with tenants, including a restaurant and two furniture stores.

The Premises allegedly sustained damage as a result of construction by the direct defendants at adjacent addresses of a faculty residence hall (at 165 East 118th Street) and theHunter College School of Social Work (at 2174 Third Avenue) (collectively, the "Project").⁵ The Project also concerned pre-construction demolition of the former building at 2174 Third Avenue, which was performed by LJC. Turner was retained to be the construction manager, which hired Urban Foundation Engineering, LLC ("Urban") to conduct excavation and underpinning work.

In July 2009, the direct defendants conducted a pre-construction survey of the Premises before commencing construction to determine whether damage existed and whether any specific precautions would be necessary. Turner retained LFR, Inc. ("LFR") to conduct a geotechnical survey before construction commenced. LFR allegedly recommended that soldier piling and lags should not be used due to the presence of groundwater, and that excavation support should provide groundwater cutoff to mitigate the intensity of construction dewatering.

The demolition phase of the Project began in September 2009; further construction activities began in January or February 2010. The excavation and underpinning portions of construction were completed in approximately March 2010. Throughout construction, plaintiff allegedly received complaints from tenants due to excessive noise and vibrations.

During construction, vibration monitors were placed in various locations throughout the Premises.⁶ On numerous occasions (including once during the underpinning), the recommended vibration limit was exceeded. Also, crack gauges were placed on existing cracks, but the data from them during significant periods of time was not produced. When new cracks appeared on the Premises, new gauges were installed at those locations.

In March 2010, Premises tenants notified plaintiff of damage thereto, including cracks in the walls and basement foundation, falling debris, flooding, and that the back alley door could no longer close because the Premises had "shifted."

Upon further examination, extensive damage was evident throughout the Premises; subsequently, tenants were allegedly forced to move out of the various units. Plaintiff then undertook work to stabilize the Premises. Eventually, plaintiff was able, to re-let the units at the 2166 and 2168 addresses, but the remaining units have allegedly been uninhabitable due to the structural damage.

Plaintiff's Bill of Particulars alleges that the direct defendants were negligent in the design, planning, monitoring and implementation of the Project, and failed to adequately design and follow procedures necessary to limit the impact of the Project on [the Premises] and to protect same from damage (¶3). With regard to the 2162 address, plaintiff claims the following damages: (a) separation in the brick wythe from the interior wythe walls on the southern side of [that] Building (the "Southern Wall"); (b) a vertical crack in the building's stucco; (c) a bulge in the Southern Wall; and (d) interior cracks on the fourth floor of the southwest corner of the building. Plaintiff further alleges that the direct defendants failed to follow LFR's recommendations. In addition, plaintiff alleges loss of rental income as a result of the property damage.

Arguments

In support of their motion, the direct defendants argue that all damages to the 2162 address preexisted any of their construction work. Structural engineer James Feuerborn ("Feuerborn") attests that based on his visits to the construction site and Premises on severaloccasions from 2010 through 2014; his review of pre-construction documents prepared as a result of an inspection of the 2162 address conducted in July 2009; and his photographs, the direct defendants did not cause the alleged damage, which pre-existed construction.

Key pre-construction observations from Feuerborn's review included: separation between walls/chimneys as both the north and south masonry chimneys; a crack in the stucco finish on the Southern Wall; and large cracks on the fourth floor interior at the southwest corner of the 2162 address. Also, survey data recorded by Dayton confirms Feuerborn's finding, and shows no significant movement of the Southern Wall since the survey began in July 2009. And, even assuming that the damage was not observed prior to construction, the objective recorded levels of vibration at the southwest corner of the 2162 address that were related to the construction were not, within a reasonable degree of engineering certainty, high enough to be expected to cause cracking of either the stucco, brick masonry, or separation of the wythes of brick masonry. Moreover, the Southern Wall is far removed (approximately 121 feet) from the Project. On this note, the movement of heavy construction equipment or material delivery trucks would not be expected to produce significantly higher levels of vibration than what would be produced by normal truck traffic on the streets surrounding the 2162 address. And, the separation between wythes of brick masonry on the Southern Wall is unrelated to construction activities and appears to be due to poor initial building construction.

Steven Hirschberg ("Hirschberg") of defendant The Brodsky Organization, LLC/118 Construction Associates (the developer of the Project) testified at his deposition that the condition of the Southern Wall was unrelated to construction, but rather due to, among other things, "continued deterioration" of the building; water penetration on the roof; the building'sframing system; and the installation of a steel and concrete stair. These issues apparently resulted in a bulge in the coating on top of the building's exterior masonry wall which preexisted construction. Hirschberg also testified that the overall poor condition of the building is exemplified by the fact that his request to rent a portion of the 2162 address as an office was denied due to "extensive water damage" and unreliable electrical/fire alarm/sprinkler systems.

Adam Wall of Urban Foundation (the excavation and underpinning subcontractor) testified that the subject bulge preexisted construction work, and that it was present during the demolition phase of the Project.

Walter Murray of Turner Construction Company testified that before construction commenced, an investigation was conducted and revealed that the 2162 Building had previously been modified, which caused damage to it as well as disrepair to the roof, "copings and water, freeze thaw cycles, et cetera." Murray also testified that issues with the Southern Wall preexisted construction on the Project.

Sharif Omar ("Omar"), plaintiff's property manager, was shown, and testified as to, New York City Department of Buildings ("DOB") documents at his deposition indicating that the 2162 address had experienced shaking and vibrating that affected its structural stability in November 2008 -- prior to the construction). Additional DOB complaints regarding these issues date back to November 2004.

The direct defendants further contend that plaintiff's lost rent claims must fail. The affidavits of John Foley ("Foley"), CFF/CPA, and Eric Haims ("Haims"), a certified New York State Real Estate Appraiser, demonstrate that plaintiff's lost rent calculations are entirely speculative. For example, plaintiff's "homemade spreadsheet" used to calculate lost rent basedon undocumented and unverified phone calls to real estate agents with rental listings in the neighborhood is speculative and unsupported by the evidence. Omar cannot testify as to any offers that were made with respect to the renting of any of the vacant spaces, any lease agreements that were signed, or to having any prospective tenants refuse to rent the Premises because of damage thereto. Also notable is the fact that Omar prepared that document personally (without expert assistance), and plaintiff has not offered expert proof to support its claim of increasing rent prices per square footage as claimed.

Likewise, plaintiff has not provided any comparative market analysis...