WFE Ventures, Inc. v. GBD Lake Placid, LLC

• Decision Date: 12 August 2021
• Docket Number: 531892
• Citation: 197 A.D.3d 824,153 N.Y.S.3d 214
• Parties: WFE VENTURES, INC., Respondent-Appellant, v. GBD LAKE PLACID, LLC, Individually and Doing Business as Lake Placid Marriott Courtyard, Defendant and Third-Party Plaintiff-Appellant-Respondent, Schopfer Architects LLP, Third-Party Defendant-Appellant, et al., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 824

153 N.Y.S.3d 214

WFE VENTURES, INC., Respondent-Appellant,

v. GBD LAKE PLACID, LLC, Individually and Doing Business as Lake Placid Marriott Courtyard, Defendant and Third-Party Plaintiff-Appellant-Respondent,Schopfer Architects LLP, Third-Party Defendant-Appellant, et al., Third-Party Defendant.

531892

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

Calendar Date: May 26, 2021

Decided and Entered: August 12, 2021

Law Office of M. Randolf Belkin, Latham (Derek L. Hayden of counsel), for defendant and third-party plaintiff-appellant-respondent.

Goldberg Segalla, LLP, Buffalo (Matthew D. Gumaer of counsel), for third-party defendant-appellant.

Flink Maswick Law PLLC, Lake Placid (Edward B. Flink of counsel), for respondent-appellant.

Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J. Cross appeals from an order of the Supreme Court (Bruening, J.,), entered July 13, 2020 in Essex County, which, among other things, partially granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

Defendant constructed a Marriott Courtyard hotel on property in the Village of Lake Placid in Essex County. When development of the hotel began in 2004, defendant hired third-party defendant Schopfer Architects LLP to obtain site approval from the Joint Review Board of the Village of Lake Placid and the Town of North Elba (hereinafter the JRB). Defendant also retained Robert M. Sutherland to prepare a stormwater management plan for the project. Part of the site plan for the hotel included an initial grading plan that called for the construction of a boulder retaining wall around the perimeter of defendant's property. The JRB approved the site plan for the hotel in May 2005 and imposed a condition requiring defendant to obtain the JRB's written approval prior to adopting any engineering modifications or design changes, including any changes to the retaining wall. Defendant hired Bette & Cring, LLC as general contractor, which, in turn, subcontracted the site work on the project to A.P. Reale & Sons, Inc. (hereinafter Reale). Soon after construction began in June 2005, defendant requested, due to a boulder shortage, and the JRB agreed, to replace the boulder retaining wall with a gabion wall.¹ Construction proceeded apace, but, in early 2006, extensive rubble was discovered along the property lines of the hotel. As a result, Schopfer submitted preliminary sketches to the local inspector/code enforcement officer, James E. Morganson, to see whether the JRB would consider replacing the bulk of the gabion wall with earthen fill that would extend the slope of the land approximately 25 to 30 feet into the neighboring St. Agnes Cemetery – located to the north of defendant's property. The record does not reflect that the JRB ever approved the slope extension as a replacement for the gabion wall. Nonetheless, the slope was in fact extended, using thousands of cubic feet of fill. The hotel was completed, and a certificate of occupancy was issued in January 2007.

In the interim, and during the construction of the hotel, plaintiff acquired a nearby parcel of land upon which it built a townhouse development now called Sentinel Pines. Plaintiff's property is located on Sentinel Road to the north of defendant's property and is down gradient from the hotel property. Defendant's and plaintiff's respective properties are separated by Cemetery Road, which, traveling easterly, joins with a parcel of land owned by St. Agnes Church that runs behind the parcels owned by plaintiff and defendant. The Sentinel Pines development plan called for the construction of four buildings – A, B, C and D – each to contain multiple townhouse units. Building D, the first building to be completed, is located at the lowest point of the property.

In February 2009, the portion of the Sentinel Pines property upon which Building D is located experienced flooding and resulting damage to all three units contained within the building. Sentinel Pines flooded three more times – in August 2009, April 2011 and August 2011. Shortly after the initial flooding, plaintiff's president, Peter Coffrin, complained to the JRB and asserted that the flooding was caused by defendant's elimination of a retention pond on the St. Agnes property as part of its slope-extending solution. In the face of defendant's failure to respond to plaintiff's requests for assistance and defendant's inaction, plaintiff undertook remedial measures, including the installation of a drainage culvert and the creation of a new retention area on the St. Agnes property. It is undisputed that flooding has not since occurred.

In January 2012, plaintiff commenced this action, asserting causes of action sounding in negligence and nuisance and claiming that through the slope extension and related construction – undertaken without JRB approval – defendant wrongfully diverted surface water that resulted in flooding to Sentinel Pines. Six years of discovery followed. Defendant then commenced a third-party action against Reale and Schopfer. Reale failed to respond to the third-party complaint and a default judgment was entered against it. After answering, Schopfer moved for summary judgment dismissing the third-party complaint based upon the stormwater management exclusion contained in its contract with defendant. Schopfer also sought, alternatively, to dismiss certain damage claims asserted by plaintiff in the complaint. Defendant, in turn, moved for summary judgment dismissing plaintiff's complaint and joined in Schopfer's motion seeking dismissal of certain of plaintiff's damage claims. Plaintiff opposed both motions and cross-moved for summary judgment against defendant on the issues of liability and proximate cause.

Supreme Court found that Schopfer failed to establish that it was entitled to dismissal of the third-party complaint as a matter of law, but granted Schopfer's alternative motion to the limited extent of dismissing plaintiff's damages claim for Sentinel Pines townhouse maintenance fees. The court also denied plaintiff's cross motion, but partially granted defendant's motion for summary judgment by dismissing plaintiff's negligence claim as duplicative of its nuisance claim. Otherwise, the court found issues of fact regarding, among other things, the degree of control exercised by defendant over the project and whether defendant's actions diverted water onto plaintiff's property by artificial means, thereby precluding summary judgment in this respect. Schopfer appeals from Supreme Court's denial of its motion for summary judgment dismissing the third-party complaint or, in the alternative, the court's failure to dismiss certain categories of damages claimed by plaintiff. Defendant appeals from the court's denial of its motion for summary judgment dismissing plaintiff's complaint. Plaintiff cross-appeals from the court's denial of its cross motion for summary judgment on the issues of liability and proximate cause, the dismissal of its negligence claim and the dismissal of its claim for management fees.

As longstanding case law reflects, "[s]ummary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. The moving party's failure to make [such] prima facie showing ... requires a denial of the motion, regardless of the sufficiency of the opposing papers" ( Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] [internal quotation marks, brackets, emphasis and citations omitted]; see CPLR 3212[b] ). In opposing a motion for summary judgment, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; accord Delosh v. Amyot, 186 A.D.3d 1793, 1794, 130 N.Y.S.3d 129 [2020] ). With respect to both defendant's motion for summary judgment dismissing the complaint and plaintiff's cross motion for summary judgment on the issues of liability and proximate cause, the threshold issue, put simply, is whether the genesis of the flooding of Sentinel Pines for which plaintiff seeks recompence was caused by defendant's construction or by some other phenomenon. Supreme Court correctly concluded, based in large part upon conflicting expert affidavits and testimony submitted or relied upon by the parties, that issues of fact are present that, in turn, require resolution by a jury.

Plaintiff submitted three expert affidavits, each of which supported plaintiff's contention that defendant's construction of the hotel – particularly its decision to use fill as opposed to the JRB approved use of a gabion wall – was the cause of the flooding. Kevin Hastings, a professional engineer with over 20 years of experience in site engineering design and stormwater drainage, inspected the property and concluded that there was no evidence of past surface water flow onto the Sentinel Pines property from any of its surrounding properties, and that the cause of the flooding "was the filling in of the lands behind the [hotel] without making alternate provisions for the stormwater that had historically been directed behind the property." Hastings also found that, once plaintiff constructed a new retention area, the flooding stopped. The affidavit of Peter E. Gibbs, another professional engineer who attested to having 30 years of experience, including in the area of stormwater management, reached a similar conclusion based upon several site visits and testing. Specifically, Gibbs opined that defendant's placement of large amounts of fill – which he...