Opinion
Index No. 55963/2022 Seq. No. 1
10-24-2022
BRENT PENDLETON and DINA PENDLETON, Plaintiffs, v. SCOTT MACKESY and JENNIFER MACKESY, Defendants. SCOTT MACKESY and JENNIFER MACKESY, Third-Party Plaintiffs, v. ICE HOUSE CONSTRUCTION, INC., ANTONIO V. CAPICOTTO, PE, DANIEL FRISCH ARCHITECT, PC, VERITAS ENGINEERING AND INSPECTION PLLC, and EDWARD C. LANGE, INC., Third-Party Defendants.
Unpublished Opinion
Motion Date: 09/27/2022
DECISION AND ORDER
HON. DAMARIS E. TORRENT, A.J.S.C.
The following papers numbered 1 to 21 were read on this motion (Seq. No. 1) by third-party defendant Daniel Frisch Architect, PC ("Frisch") to dismiss the third-party complaint against it pursuant to CPLR 3211(a)(1) and (7):
| PAPERS | NUMBERED |
| Notice of Motion / Affirmation (Thorsen) I Exhibits A-C / Affidavit (Frisch) I Exhibits A-D / Memorandum of Law | 1-11 |
| Affirmation in Opposition (Carpentiere) / Exhibits 1-3 | 12-15 |
| Affidavit in Response (Capicotto) | 16 |
| Reply Affidavit (Mott) / Exhibits A-C / Memorandum of Law | 17-21 |
Upon the foregoing papers, the motion is granted in part and denied in part.
This action arises out of the flooding of plaintiffs' property, allegedly caused by a construction project on defendants' adjoining property which consisted of the demolition of an existing house, physical alteration of defendants' parcel, and construction of a new house thereon. Plaintiff commenced this action by filing a Summons and Complaint on January 31, 2022. Defendants thereafter filed a Third-Party Summons and Third-Party Complaint on June 6, 2022. The third-party complaint ("complaint") asserts causes of action for common law indemnification, contribution, contractual indemnification, and breach of contract in connection with the failure to procure general liability insurance.
By Notice of Motion filed on July 28, 2022, Frisch seeks an order dismissing the complaint against it pursuant to CPLR 3211 (a)(1) and (7), asserting that the complaint fails to state a cause of action against Frisch, and that defendants' claims against Frisch are barred by documentary evidence. Frisch asserts that the claims against it are not sufficiently pleaded, as they consist of bare legal conclusions without supporting facts. Frisch further contends that the complaint against it must be dismissed, as its only role in the subject construction project was to provide architectural drawings and did not include the design of the drainage system on defendants' parcel.
Frisch contends that their drawings merely incorporated references to the drainage plans prepared by another third-party defendant, Antonio V. Capicotto, PE. Frisch contends that the claims against it are barred by Capicotto's correspondence to the Bronxville Building Department stating that the drainage system was sufficient to address runoff at defendants' premises. Frisch further asserts that it did not enter into any written agreement which required it to indemnify any party or to procure liability insurance. Frisch thus concludes that the complaint against it should be dismissed.
In opposition, defendants contend that the self-serving Affidavit of Daniel Frisch is insufficient to warrant dismissal of the third-party complaint. Defendants contend that none of the documents submitted on Frisch's motion conclusively establish a defense to the claims as a matter of law. Defendants further contend that the third-party complaint, which incorporates by reference plaintiffs' complaint, sufficiently pleads that plaintiffs' damages were caused, in whole or in part, by the negligent performance of professional services by the third-party defendants including Frisch.
Third-party defendant Antonio V. Capicotto, PE submitted an Affidavit in response to the motion in which he avers that he was engaged by third-party defendant Ice House Construction, Inc. to design the drainage system for the subject project. Capicotto avers that he did not prepare the site plan for the project and he was not responsible for grading the property or for any construction work on defendants' parcel.
In reply, Frisch reiterates its contention that Capicotto's correspondence to the Building Department, which was submitted after Frisch rendered its architectural drawings, bars the claims asserted against Frisch. Frisch thus concludes that the motion should be granted.
The Court has fully considered the submissions of the parties.
On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), the facts as alleged in the complaint are accepted as true, and the plaintiff is accorded the benefit of every possible favorable inference (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). "At the same time, however, allegations consisting of bare legal conclusions ... are not entitled to any such consideration" (Simkin v Blank, 19 N.Y.3d 46, 52 [2012] [internal quotation marks omitted]). "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141-142 [2017]).
"When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Wells Fargo Bank N.A. v. E &G Dev. Corp., 138 A.D.3d 986, 986 - 987 [2d Dept 2016] [citation omitted]).
A motion to dismiss based on documentary evidence pursuant to CPLR 3211 (a) (1) may be granted only where the documentary evidence "utterly refutes" the plaintiffs factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue (Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002]; Rodeo Family Enters., LLC v Matte, 99 A.D.3d 781,782 [2d Dept 2012]). To be considered "documentary evidence" within the meaning of CPLR 3211(a)(1), the evidence must be unambiguous and of undisputed authenticity. Judicial records, as well as documents reflecting out-of-court transactions, such as mortgages, deeds, leases and contracts, which in context are "essentially undeniable," qualify as "documentary evidence" in the proper case (Fontanetta v John Doe I, 73 A.D.3d 78 [2d Dept 2010]).
Common Law Indemnification; Contribution
The first and second causes of action in the third-party complaint allege that if plaintiffs sustained damages in the manner alleged in the complaint, such damages were caused in whole or in part by, inter alia, the third-party defendants' failure to perform their work in accordance with applicable industry standards, professional rules and applicable codes, rules, regulations, statutes and local laws. Construing the pleading liberally as the Court must do on this motion, the third- party complaint states causes of action for common law indemnification and contribution against Frisch.
These claims cannot be said to be utterly refuted by the evidence introduced on Frisch's motion. Specifically, though Frisch relies on the correspondence submitted by Capicotto to the Bronxville Building Department, nothing in that correspondence can be said to utterly refute the allegation that Frisch failed to perform its work in accordance with applicable professional standards. The correspondence establishes, at most, that Capicotto believed the drainage system he designed to be sufficient to collect runoff from the roof, patio and concrete pads which, as designed by Frisch, differed from the calculations Capicotto used initially in designing the drainage system. Capicotto's correspondence cannot be interpreted, for example, to assert that Frisch's design was proper or in accordance with applicable standards. The motion to dismiss the first and second causes of action in the third-party complaint thus is denied.
Contractual Indemnification; Breach of Agreement to Procure Liability Insurance
The third cause of action alleges that the third-party defendants, including Frisch, entered into written agreements to defend, indemnify and hold harmless the defendants for all claims, damages, losses and expenses relating to or in connection with their work on the subject construction project. The fourth cause of action alleges that the third-party defendants, including Frisch, entered into written agreements requiring them to obtain general liability and excess/umbrella insurance naming defendants as additional insureds in connection with the project.
Frisch on its motion submitted the Affidavit of its Principal, Daniel Frisch, A1A, who avers that Frisch did not enter into any written agreements of any kind in connection with the project. Rather, Frisch entered into an oral agreement with defendants pursuant to which Frisch agreed only to provide architectural services. Frisch did not agree to defend or indemnify any party or to obtain insurance naming defendants as additional insureds.
No party in opposition to the motion contested Frisch's assertion that it entered into no written contracts. The evidence submitted on Frisch's motion thus established that material facts alleged in the third and fourth causes of action, namely that Frisch entered into written agreements to defend and indemnify and to procure insurance, are not facts at all. The third and fourth causes of action as asserted against Frisch thus are dismissed.
Accordingly, it is hereby
ORDERED that the motion is granted to the extent that the Third and Fourth causes of action in the Third-Party Complaint as asserted against third-party defendant Daniel Frisch Architect. PC are dismissed; and it is further
ORDERED that the motion is otherwise denied; and it is further
ORDERED that, within ten (10) days of the date hereof, defendants / third-party plaintiffs shall serve a copy of this Decision and Order, with notice of entry, upon all other parties; and it is further
ORDERED that within ten (10) days of service of notice of entry, defendants / third-party plaintiffs shall file proof of said service via NYSCEF; and it is further
ORDERED that the parties shall appear for virtual compliance conference on November 23,2022 at 12:00 p.m.
The foregoing constitutes the Decision and Order of the Court.