Opinion
603340/07.
Decided May 11, 2010.
In this action sounding in negligence resulting in property damage, third-party defendant, Richard J. Zaloum (Mr. Zaloum), seeks an Order, pursuant to CPLR 3211(a)(7) and/or CPLR 3211(c) dismissing the third cause of action asserted by third-party plaintiff, S.T.A. Parking Corp..
FACTUAL BACKGROUND
Plaintiff, East 77 Owners Co., LLC, owns property located at 436 East 77th Street, New York, NY (plaintiff's property). Defendant, S.T.A. Parking Corp.(STA), owns property located at 433 East 76th Street, New York, NY (STA's property). Plaintiff's property abuts STA's property.
Prior to March, 2005 STA retained Gloden Vale Construction Corp., Hawk Consulting Services, Inc., and Certified Testing Laboratories, Inc. (CTL) to perform construction work, including excavation, on STA's property (the construction project). CTL's professional engineer was Richard J. Zaloum (Mr. Zaloum). The general contractor for the construction project was King Sha Group Inc.
Plaintiff alleges that on or about March, 2005, the structural integrity of plaintiff's property was compromised due to the construction project. Gloden Vale Construction Corp., Hawk Consulting Services, Inc., and Certified Testing Laboratories, Inc. and King Sha Group Inc. were sued for alleged negligent performance of the construction project which caused extensive damage to plaintiff's property (the main action).
After the main action was commenced, the general contractor, King Sha Group Inc. commenced an action against Richard J. Zaloum (Mr. Zaloum), defendant CTL's professional engineer. King Sha Group Inc. essentially alleges that Mr. Zaloum, who was not named as a defendant in the main action, was careless, negligent and must indemnify King Sha Group Inc. (the 1st third-party complaint).
Several months later, another third-party action was commenced by defendant STA against Mr. Zaloum (the 2nd third-party complaint). STA alleged the following causes of action against Mr. Zaloum: indemnification for damages STA may incur in the main action (1st cause of action); contribution for Mr. Zaloum's pro-rata share of any damages awarded to plaintiff in the main action (2nd cause of action); and costs to repair damages caused to STA's property as a result of Mr. Zaloum's defective engineering plans (the 3rd cause of action).
In response, Mr. Zaloum generally denied the allegations contained in the third-party actions and asserted several affirmative defenses (see, answer to third-party complaint dated April, 2008). Discovery in these matters is not yet complete.
ARGUMENTS
Mr. Zaloum contends that because the 3rd cause of action did not arise from the liability asserted in the main action as mandated by CPLR 1007, STA has not asserted a cause of action against Mr. Zaloum and dismissal is warranted pursuant to CPLR 3211(a)(7) and/or CPLR 3211(c).STA contends that it has stated a cause of action for negligence in drafting the plans and therefore this matter cannot be dismissed pursuant to CPLR 3211(a)(7). Additionally, STA argues that it's 3rd cause of action directly relates to STA's counterclaim(s) in the main action seeking costs against plaintiff for water infiltration originating from plaintiff's property which caused damage to STA's property. It is STA's argument that Mr. Zaloum was aware of the water leak problem originating from plaintiff's property, yet failed to properly draft and implement engineering plans that would address this issue which resulted in continued property damage (the 3rd cause of action).
STA's alternative relief seeking severance of it's third cause of action, pursuant to CPLR 603 and CPLR 1001, will not be addressed by this Court as it is an affirmative relief which was not properly noticed pursuant to CPLR 2215.
DISCUSSION
When deciding whether or not a complaint should be dismissed pursuant to CPLR 3211(a)(7), the complaint must be construed in the light most favorable to the plaintiff, and all factual allegations must be accepted as true, limiting the inquiry to whether or not the complaint states, in some recognizable form, any cause of action known to our law (see, World Wide Adjustment Bureau et al., v Edward S. Gordon Company, Inc., et al., 111 AD2d 98 [1st Dept, 1985]). In assessing the sufficiency of the complaint, this Court must also consider the allegations made in both the complaint and the accompanying affidavit(s), submitted in opposition to the motion, as true and resolve all inferences which reasonably flow therefrom, in favor of the plaintiff ( Joel v. Weber, 166 Ad2d 130, [1st Dept, 1991]). The sufficiency of a pleading to state a cause of action generally depends upon whether or not there is substantial compliance with C.P.L.R. 3013, which requires that statements in a pleading be sufficiently particular to give the court and parties notice of the transactions or occurrences intended to be proved and the material elements of each cause of action. Pleadings should not be dismissed or ordered amended unless the allegations therein are not sufficiently particular to apprise the court and parties of the subject matter of the controversy. Further, every pleading question should be approached in the light of C.P.L.R. 3026 requiring that pleadings shall be liberally construed and that defects shall be ignored if a substantial right of a party is not prejudiced. Thus, the burden is placed upon one who attacks a pleading for deficiencies in its allegations to show that he is prejudiced. The test of prejudice is to be given primary emphasis. Thereby, the court disregards pleading irregularities, defects, or omissions that are not such as to reasonably mislead one as to the identity of the transactions or occurrences sought to be litigated or as to the nature and elements of the alleged cause or defense.
In this case STA sufficiently stated a cause of action against Mr. Zaloum, for alleged defective engineering plans that failed to address the water infiltration originating from plaintiff's property onto STA's property and therefore contributed to the damage caused to STA's property.
CPLR 1007 states, in pertinent part:
"After service of [the] answer, a defendant may proceed against a person not a party who is or may be liable to that defendant for all or part of plaintiff's claim against that defendant . . .".
Here, although plaintiff in the main action never named Mr. Zaloum as a defendant, plaintiff refers several times to Mr. Zaloum's role in the alleged negligent work at the construction site. Part of STA's argument, in defense to the main action, is that "[a]ll or a portion of the damages alleged by Plaintiff resulted from the actions and/or inaction of the non-party, Richard Zaloum, PE" (see STA's fourteenth affirmative defense to the main action), which act/omission could be that alleged defective plans (the 3rd cause of action). This Court concludes that STA has set forth a cause of action against Mr. Zaloum that is related to the main cause of action by questions of law and/or facts common to both controversies.
To the extent that discovery in these matters is still outstanding (see, Djelina Lekutanovic et al. v City of New York, 279 AD2d 378 [1st Dept 2001]), this Court will not consider Mr. Zaloum's within motion for summary judgment pursuant to CPLR 3211 (c), as such consideration would be premature at this juncture. Accordingly, it is
ORDERED, that Richard J. Zaloum's motion pursuant to CPLR 3211(a)(7) and/or CPLR 3211(c) dismissing the third cause of action asserted by third-party plaintiff, S.T.A. Parking Corp., is denied, in its entirety; and it is further
ORDERED, that the parties appear for their previously scheduled status conference on September 30, 2010.